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Provisional text
delivered on 22 October 2024 (1)
Staatssecretaris van Justitie en Veiligheid
(Request for a preliminary ruling from the Rechtbank Den Haag, zittingsplaats Amsterdam (District Court, The Hague, sitting in Amsterdam, Netherlands))
and
AI,
ZY,
BG
Staatssecretaris van Justitie en Veiligheid
(Request for a preliminary ruling from the Raad van State (Council of State, Netherlands))
( Reference for a preliminary ruling – Asylum policy – Temporary protection in the event of a mass influx of displaced persons – Invasion of Ukraine by Russian armed forces – Directive 2001/55/EC – Article 4 – Article 7(1) – Implementing decision (EU) 2022/382 – Article 2(3) – Implementing decision (EU) 2023/2409 – Article 1 – Extension by a Member State of the beneficiaries of optional temporary protection – Point in time when a Member State may terminate optional temporary protection – Directive 2008/115/EC – Point in time when a Member State may issue a return decision – Illegal stay )
1.On 24 February 2022, Russian armed forces launched a large-scale invasion of Ukraine at multiple locations from the Russian Federation, from Belarus and from non-government-controlled areas of Ukraine. As a result, substantial areas of Ukrainian territory now constitute areas of armed conflict from which thousands of persons have fled or are fleeing. (2)
2.The European Union had to provide an appropriate response to the migratory pressure resulting from this invasion. Thus, on 31 July 2024, approximately 4.1 million displaced persons were benefiting from temporary protection in the European Union, (3) including 117 895 in the Netherlands. (4)
3.The present requests for a preliminary ruling concern the interpretation of Article 4 of Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof; (5) Article 6 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; (6) Article 2(3) of Implementing Decision 2022/382, and Article 1 of Council Implementing Decision (EU) 2023/2409 of 19 October 2023 extending temporary protection as introduced by Implementing Decision (EU) 2022/382. (7)
4.These requests were made in the context of proceedings between nationals of non-EU countries other than Ukraine who were granted temporary protection (8) in the Netherlands, pursuant to Article 7(1) of Directive 2001/55 and Article 2(3) of Implementing Decision 2022/382, and the Staatssecretaris van Justitie en Veiligheid (State Secretary for Justice and Security, Netherlands) (‘the State Secretary’), after the latter issued return decisions to those nationals.
5.The present cases will lead the Court to specify the point in time when a Member State may terminate the optional temporary protection which it has freely decided to grant to certain categories of displaced persons. These cases also invite the Court to determine the point in time when a Member State may issue a return decision to persons who no longer benefit from such protection.
6.That mechanism was established by Directive 2001/55, which was adopted in the aftermath of the conflict in the former Yugoslavia, when, for the first time since the Second World War, the European Union was confronted with mass displacements of people resulting from a conflict in European territory. That directive recognised the need to be able to offer immediate temporary protection in the Member States from that point on, in particular where the asylum systems of those States might not be able to properly manage the influx of displaced persons. That directive lays down minimum standards to provide an adequate level of protection to displaced persons. Member States should, inter alia, make it easier for such persons to access employment and decent accommodation.
7.Thus, as stated in Article 1 of Directive 2001/55, ‘the purpose of this Directive is to establish minimum standards for giving temporary protection in the event of a mass influx of displaced persons from third countries who are unable to return to their country of origin and to promote a balance of effort between Member States in receiving and bearing the consequences of receiving such persons’.
8.Article 2(a) of that directive defines ‘temporary protection’ as ‘a procedure of exceptional character to provide, in the event of a mass influx or imminent mass influx of displaced persons from third countries who are unable to return to their country of origin, immediate and temporary protection to such persons, in particular if there is also a risk that the asylum system will be unable to process this influx without adverse effects for its efficient operation, in the interests of the persons concerned and other persons requesting protection’.
9.Chapter III of that directive sets out the obligations of the Member States as to the conditions of reception and residence of persons enjoying temporary protection in the event of a mass influx of displaced persons.
10.As stated in recital 13 of Directive 2001/55, the temporary protection mechanism established by that directive is of exceptional character, which means that ‘the protection offered should be of limited duration’.
11.Thus, the duration of temporary protection is specified in Article 4 of that Directive, which provides:
‘1. Without prejudice to Article 6, the duration of temporary protection shall be one year. Unless terminated under the terms of Article 6(1)(b), it may be extended automatically by six monthly periods for a maximum of one year.
12.The detailed rules for the implementation of the temporary protection are set out in Article 5 of Directive 2001/55, which provides as follows:
‘1. The existence of a mass influx of displaced persons shall be established by a Council Decision adopted by a qualified majority on a proposal from the Commission, which shall also examine any request by a Member State that it submit a proposal to the Council.
…
3. The Council Decision shall have the effect of introducing temporary protection for the displaced persons to which it refers, in all the Member States, in accordance with the provisions of this Directive. The Decision shall include at least:
(a) a description of the specific groups of persons to whom the temporary protection applies;
(b) the date on which the temporary protection will take effect;
…’
13.The end of the temporary protection is governed by Article 6 of that directive, (9) which reads as follows:
‘1. Temporary protection shall come to an end:
(a) when the maximum duration has been reached; or
(b) at any time, by Council Decision adopted by a qualified majority on a proposal from the Commission, which shall also examine any request by a Member State that it submit a proposal to the Council.
14.Article 7(1) of Directive 2001/55 allows the Member States to extend the circle of beneficiaries of temporary protection. It thus provides:
‘Member States may extend temporary protection as provided for in this Directive to additional categories of displaced persons over and above those to whom the Council Decision provided for in Article 5 applies, where they are displaced for the same reasons and from the same country or region of origin. They shall notify the Council and the Commission immediately.’
15.By Implementing Decision 2022/382, the Council decided to activate the temporary protection mechanism provided for in Directive 2001/55.
16.That implementing decision is based on the finding in recital 7 thereof that, following Russia’s military invasion of Ukraine and the ensuing armed conflict, ‘the Union is likely to be faced with a situation that is characterised by a mass influx of displaced persons from Ukraine who are unable to return to their country or region of origin because of Russian military aggression. The scale of the influx would likely be such that there is also a clear risk that the Member States’ asylum systems will be unable to process the arrivals without adverse effects on their efficient operation and on the interests of the persons concerned and on those of other persons requesting protection’. (10)
17.Thus, Article 1 of that implementing decision establishes ‘the existence of a mass influx into the Union of displaced persons who have had to leave Ukraine as a consequence of an armed conflict’.
18.As stated in recital 16 of implementing decision 2022/382, the purpose of temporary protection is to enable displaced persons who benefit from it to ‘enjoy harmonised rights across the Union that offer an adequate level of protection’. Moreover, such protection ‘is also expected to benefit the Member States, as the rights accompanying temporary protection limit the need for displaced persons to immediately seek international protection and thus the risk of overwhelming their asylum systems, as they reduce formalities to a minimum because of the urgency of the situation’.
19.Article 2 of Implementing Decision 2022/382 specifies the persons to whom temporary protection applies. Two groups of persons must be distinguished.
20.The first group consists of persons who are entitled to temporary protection as provided for in Directive 2001/55. In other words, a group of persons whom the Member States are required to protect pursuant to that implementing decision (‘the group of persons benefiting from mandatory protection’).
21.Thus, Article 2(1) of that implementing decision provides that the temporary protection provided for in that directive applies to the following categories of persons displaced from Ukraine on or after 24 February 2022, as a result of the military invasion by Russian armed forces that began on that date:
–Ukrainian nationals residing in Ukraine before 24 February 2022 and their family members; and
–stateless persons, and nationals of third countries other than Ukraine, who benefited from international protection or equivalent national protection in Ukraine before 24 February 2022, and their family members.
22.Furthermore, in accordance with Article 2(2) of Implementing Decision 2022/382, the temporary protection provided for in Directive 2001/55 or adequate protection under the national law of the Member States (11) is to be applied in respect of stateless persons, and nationals of third countries other than Ukraine, who can prove that they were legally residing in Ukraine before 24 February 2022 on the basis of a valid permanent residence permit issued in accordance with Ukrainian law, and who are unable to return in safe and durable conditions to their country or region of origin.
23.In addition to that group of persons benefiting from mandatory protection, Article 2(3) of that implementing decision offers the Member States, in accordance with the provisions of Article 7(1) of Directive 2001/55, the possibility to extend the circle of beneficiaries of temporary protection. (12)
24.Article 2(3) of Implementing Decision 2022/382 thus provides that ‘Member States may also apply [that implementing decision] to other persons, including to stateless persons and to nationals of third countries other than Ukraine, who were residing legally in Ukraine and who are unable to return in safe and durable conditions to their country or region of origin’ (‘the group of persons benefiting from optional protection’ or ‘the optional group’).
25.As stated in recital 13 of the implementing decision, that group could include, inter alia, ‘third-country nationals who were studying or working in Ukraine on a short-term basis at the time of the events leading to the mass influx of displaced persons’.
26.The Member States’ option to extend the circle of beneficiaries of temporary protection is also recalled in recital 14 of Implementing Decision 2022/382, which states that ‘Member States may also extend temporary protection to additional categories of displaced persons above and beyond those to whom [that implementing decision] applies, where those persons are displaced for the same reasons and from the same country or region of origin as referred to in [that implementing decision]. In that case, the Member States should notify the Council and the Commission immediately’. The same recital also states that ‘in this context, Member States should be encouraged to consider extending temporary protection to those persons who fled Ukraine not long before 24 February 2022 as tensions increased or who found themselves in the territory of the Union (e.g. on holidays or for work reasons) just before that date and who, as a result of the armed conflict, cannot return to Ukraine.’
27.Following the adoption of Implementing Decision 2022/382 and in accordance with Article 4(1) of Directive 2001/55, temporary protection was applied for an initial period of one year, until 4 March 2023, and was then extended automatically for a further year, until 4 March 2024.
28.Pursuant to Article 4(2) of that Directive, the Council decided to extend the temporary protection introduced by that implementing decision.
29.Thus, Article 1 of Implementing Decision 2023/2409 provides that ‘the temporary protection given to persons displaced from Ukraine referred to in Article 2 of Implementing Decision [2022/382] is extended for a period of one year until 4 March 2025’.
30.In support of Implementing Decision 2023/2409, the Council observes, in recital 5 thereof, that ‘there are approximately 4.1 million displaced persons that currently benefit from temporary protection in the Union [and] [t]he situation in Ukraine does not allow for their return to Ukraine under safe and durable conditions’.
31.Furthermore, as stated in recital 6 of that implementing decision, ‘the overall number of registrations of persons that enjoy temporary protection has remained stable at around 4.1 million, with low numbers of persons reporting having returned to Ukraine on a permanent basis. Moreover, the risk of a future mass influx and displacement of more persons fleeing from Ukraine to the Union continues to exist due to the volatility and the uncertainty of the situation in Ukraine as a result of hostile actions by Russia. Heavy fighting continues in many areas and the risk of escalation remains. This, combined with the difficult humanitarian situation in Ukraine could lead to a sudden and further increase of arrivals into the Union that could reach the level of a mass influx. At the same time, the risk to the efficient operation of the national asylum systems would remain if temporary protection were to cease soon and all those persons were to apply for international protection at once’.
32.In addition, as is clear from recital 7 of that implementing decision, ‘the high number of displaced persons in the Union that benefit from temporary protection is not likely to decrease as long as the war against Ukraine continues. Extending temporary protection is therefore necessary to address the situation of persons that currently benefit from temporary protection in the Union or who will need such protection as of 4 March 2024, as it provides for immediate protection and access to a harmonised set of rights whilst keeping formalities to a minimum in a situation of mass influx to the Union. Extending temporary protection will also help to ensure that the asylum systems of the Member States are not overwhelmed by a significant increase in the number of applications for international protection that could be lodged by persons that benefit from temporary protection until 4 March 2024, if temporary protection were to cease by then or by persons fleeing the war in Ukraine that arrive in the Union after that date and before 4 March 2025.’
33.Although it was not raised in the exchange of oral argument before the Court in the present proceedings, I think it useful to point out that the temporary protection introduced by Implementing Decision 2022/382 was extended by the Council again, once more on the basis of Article 4(2) of Directive 2001/55. (13)
34.Thus, Article 1 of Council Implementing Decision (EU) 2024/1836 of 25 June 2024 extending temporary protection as introduced by Implementing Decision (EU) 2022/382, (14) provides that ‘the temporary protection given to persons displaced from Ukraine referred to in Article 2 of Implementing Decision [2022/382], and extended by Implementing Decision [2023/2409], is extended for a further period of 1 year, until 4 March 2026’. That extension of the temporary protection is justified on grounds similar to those which led the Council to adopt Implementing Decision 2023/2409. (15)
35.The Kingdom of the Netherlands transposed Directive 2001/55 into national law by a law of 16 December 2004, (16) amending the Vreemdelingenwet 2000 (Law of 2000 on foreign nationals) (17) of 23 November 2000. The decision was made to opt for a system under which the displaced person must lodge an asylum application enabling him or her to obtain a legal right of residence in the Netherlands under Article 8(f) or (h) of that law.
36.The categories of persons who may benefit from temporary protection are set out in Article 3.1a(1) of the Vreemdelingenbesluit 2000 (Decision of 2000 on foreign nationals) (18) of 23 November 2000, which provides as follows:
‘1. A foreign national who makes an application for a temporary asylum residence permit cannot be removed while a decision referred to in Article 5(3) of Directive [2001/55] is in force if that foreign national:
(a) belongs to a specific group of foreign nationals defined in a Council decision … referred to in Article 5(3) of Directive [2001/55];
…
(e) belongs to the group, to be designated by ministerial regulation, of foreign nationals from the same country or region as the foreign national referred to in subparagraph (a), who has been displaced for the same reason and does not already benefit from protection in another country which is party to the [FEU] Treaty or the Agreement on the European Economic Area.’
37.By letter of 30 March 2022, the State Secretary informed the members of the Dutch Parliament of his intention to grant temporary protection to stateless persons and third-country nationals who held a valid temporary residence permit in Ukraine on 23 February 2022, and to waive the criterion that those persons must be unable to return in safe and durable conditions to their country or region of origin.
38.On 18 July 2022, the State Secretary sent another letter to the members of the Dutch Parliament stating that, as of 19 July 2022, he would no longer make use of the possibility to grant temporary protection to that group of persons. (19) However, for members of that group who were already enjoying optional temporary protection at that time, (20) the State Secretary announced that that protection would be terminated on 4 March 2023. By letter of 10 February 2023, the State Secretary indicated that the date of termination was postponed to 4 September 2023. (21)
39.In designating the categories of persons making up the group of persons benefiting from optional protection, the Kingdom of the Netherlands implemented the option offered by Article 7(1) of Directive 2001/55 and by Article 2(3), of Implementing Decision 2022/382 to extend temporary protection to categories of persons other than those who, pursuant to Article 5(3) of that directive, are referred to in Article 2(1) and (2) of that decision and who make up the group of persons benefiting from mandatory protection.
40.That designation and the purpose of the Kingdom of the Netherlands’ use of that option were formalised in Article 1 of the Regeling van de Staatssecretaris van Justitie en Veiligheid houdende wijziging van het Voorschrift Vreemdelingen 2000, in verband met het aanpassen van de doelgroep ontheemden uit Oekraïne, waaraan tijdelijke bescherming wordt verleend (Regulation of the State Secretary for Justice and Security amending the Regulation of 2000 on foreign nationals as regards the target group of persons displaced from Ukraine who are granted temporary protection) (22) of 17 August 2022, which inserted Article 3.9a in the Voorschrift Vreemdelingen 2000 (Regulation of 2000 on foreign nationals) (23) of 18 December 2000, which lists the categories of foreign nationals referred to in Article 3.1a(1)(e) of the Decision of 2000 on foreign nationals. Part B (24) of the abovementioned Article 1 states:
‘…
Article 3.9a
1. The persons designated as foreign nationals covered by Article 3.1a(1)(e) of the Decision [of 2000 on foreign nationals] are foreign nationals who:
…
(c) held a valid residence permit in Ukraine on 23 February 2022 and are likely to have left Ukraine after 26 November 2021.
…’
41.Article 1, part C, (25) of the amending regulation provides:
‘Article 3.9a(1)(c) is amended as follows:
(c) held a valid permanent residence permit in Ukraine on 23 February 2022 and in respect of whom:
1. it is likely that they left Ukraine after 26 November 2021; and
42.Article 2 of that amending regulation provides:
‘Article 3.9a(1)(c), in the version in force until 19 July 2022, shall continue to apply until 4 March 2023 to foreign nationals who:
(a) did not hold a valid permanent residence permit in Ukraine on 23 February 2022; and
(b) were registered in the [Basisregistratie Personen (personal records database) (‘BRP’)] before 19 July 2022’.
43.Under Article 2 of the Regeling van de Staatssecretaris van Justitie en Veiligheid in verband met de verlenging van de duur van tijdelijke bescherming aan een groep ontheemden uit Oekraïne (Regulation of the State Secretary for Justice and Security extending the duration of temporary protection to a group of persons displaced from Ukraine) (26) of 1 March 2023, the period of application of the Regulation of 2000 on foreign nationals was extended for those foreign nationals until 4 September 2023.
44.Consequently, it follows from the Netherlands legislation that the group of persons benefiting from optional protection in the Netherlands consists of stateless persons and third-country nationals who held a valid temporary residence permit in Ukraine on 23 February 2022, who are likely to have left Ukraine after 26 November 2021 (27) and who were registered in the BRP before 19 July 2022.
45.For the persons in that group, the temporary protection which was initially due to end on 4 March 2023 was extended until 4 September 2023.
46.The legal issues relating to the termination of the temporary protection of the group of persons benefiting from optional protection have been the subject of different assessments by the Netherlands courts.
47.In order to fully understand the reasoning adopted by those courts and the legal issues at stake in the present cases, I think it useful to juxtapose the start and end dates for temporary protection which are set out in EU law with those set out in the Netherlands legislation.
48.In the first place, as regards EU law, the temporary protection mechanism was activated on 4 March 2022, automatically extended until 4 March 2024, and then extended by two Council decisions, initially until 4 March 2025 and then, most recently, until 4 March 2026.
49.In the second place, as regards the Netherlands legislation, the temporary protection of the group of persons benefiting from optional protection took effect retroactively from 4 March 2022. With effect from 19 July 2022, the Netherlands authorities decided to stop granting that protection to new persons. Under that legislation, persons who already enjoyed that protection could continue to do so until 4 September 2023.
50.This juxtaposition of the start and end dates of the temporary protection leads me, at this stage, to make two observations.
51.First, it follows from the Netherlands legislation that the temporary protection of the group of persons benefiting from optional protection was terminated on a date prior to 4 March 2024, which is the date resulting from the automatic extension of the temporary protection mechanism provided for in Article 4(1) of Directive 2001/55.
52.
Secondly, the Netherlands authorities decided not to make any further use of the option to extend temporary protection to additional beneficiaries with effect from 19 July 2022, that is to say before the adoption of Implementing Decision 2023/2409 by which the Council decided to extend the temporary protection granted to displaced persons from Ukraine until 4 March 2025. It follows that, at the time the Council decided to extend that temporary protection, the Netherlands authorities had already chosen not to make use of the option offered by Article 7(1) of Directive 2001/55 and Article 2(3) of Implementing Decision 2022/382.
53.Those findings led the Netherlands courts to take a position on the question whether the Netherlands authorities could freely decide that the temporary protection of the group of persons who had enjoyed optional protection in the Netherlands was to be terminated on 4 September 2023.
54.If the answer to that question was negative, there would be another question to be decided, namely: in so far as the Netherlands authorities decided, with effect from 19 July 2022, to make no further use of the option offered by Article 7(1) of Directive 2001/55 and Article 2(3) of Implementing Decision 2022/382, does the temporary protection of the group of persons who have benefited from optional protection in the Netherlands end on 4 March 2024 (end of the automatic extension period) or on 4 March 2025 (end of the optional extension period)? (28)
55.Several positions have been adopted by the Netherlands courts, which I propose to summarise below by grouping them into three lines of case-law.
(a) First line of case-law: the Netherlands authorities could freely decide that the temporary protection of the group of people benefiting from optional protection was to be terminated on 4 September 2023
56.This first line of case-law is illustrated, in particular, by the judgment of the Rechtbank Den Haag, zittingsplaats Rotterdam (District Court, The Hague, sitting in Rotterdam, Netherlands) of 9 August 2023. (29) The reasoning developed by that court, in support of the view that the Netherlands authorities could freely decide that the temporary protection of the group of persons benefiting from optional protection in the Netherlands was to be terminated on 4 September 2023, may be summarised as follows.
57.According to that court, a distinction must be drawn between, on the one hand, the termination of the temporary protection mechanism, which must be decided by the Council pursuant to Article 6 of Directive 2001/55, and, on the other hand, the possibility for a Member State to discontinue the application of an optional provision in respect of the group of persons who are not automatically entitled to temporary protection. In so doing, that Member State does not adversely affect the temporary protection enjoyed by persons belonging to the group to which mandatory protection must be granted, since the Council alone has the power to terminate it.
58.Since the Member States are free to apply an optional provision, they should be free to reconsider this choice, given their autonomy of decision.
59.In addition, the Rechtbank Den Haag, zittingsplaats Rotterdam (District Court, The Hague, sitting in Rotterdam) found that the State Secretary had duly stated the reasons why he had decided to make no further use of the option offered by Article 2(3) of Implementing Decision 2022/382.
60.Moreover, according to that court, the principles of the protection of legitimate expectations, legal certainty and proportionality were not infringed. In particular, that court held that the State Secretary had not given specific and unequivocal assurances to the appellant that he would retain his temporary protection beyond 4 September 2023. Furthermore, the State Secretary was not bound by the duration of the temporary protection provided for in Article 4(1) of Directive 2001/55.
(b) Second line of case-law: the temporary protection of the group of persons benefiting from optional protection ends automatically at the end of the automatic extension period, namely on 4 March 2024
61.The judgment of the Rechtbank Den Haag, zittingsplaats Rotterdam (District Court, The Hague, sitting in Rotterdam), which I have described above to illustrate the first line of case-law, was the subject of an appeal before the Raad van State (Council of State, Netherlands), which gave its judgment on 17 January 2024.
62.In that judgment, that court ruled that the State Secretary was not entitled to terminate the temporary protection of the group of persons benefiting from optional protection on 4 September 2023, but that the temporary protection of that group would end automatically on 4 March 2024. In summary, that court put forward the following arguments in that regard.
63.As regards the duration of temporary protection, the Raad van State (Council of State) took as its starting point the fact that Article 7(1) of Directive 2001/55 provides that Member States may extend temporary protection as provided for in that directive to additional categories of displaced persons. That court inferred from that wording that Directive 2001/55 is fully applicable to third-party nationals belonging to the group of persons benefiting from optional protection, including as regards the duration of temporary protection provided for in that directive. (30) For those persons, there should therefore be compliance with Article 4 of Directive 2001/55, which means that the temporary protection of those persons cannot be terminated at any moment under national law. In other words, the Netherlands authorities had no independent power to terminate that protection.
64.According to that court, reference should therefore be made to the scheme and chronology of Article 4 of Directive 2001/55. Article 4(2) of that directive states that the Council may decide, on a proposal from the Commission, to extend the temporary protection by up to one year if reasons for that temporary protection persist. For persons displaced from Ukraine, other than the optional group, the period in question is from 4 March 2024 to 4 March 2025.
65.The Raad van State (Council of State) held that paragraphs (1) and (2) of Article 4 of Directive 2001/44 therefore refer to different situations. Paragraph (1) provides for the initial duration of the temporary protection and its automatic extension. That situation is provided for in Implementing Decision 2022/382. Paragraph (2) deals with a new situation, in which the Council, on a proposal from the Commission, reassesses whether reasons for temporary protection persist. That protection can then be extended for up to a year, which, in this case, gave rise to Implementing Decision 2023/2409.
66.That court inferred from that implementing decision that the extension until 4 March 2025 applies only to the extent that Member States were still applying Article 2(3) of Implementing Decision 2022/382 on 19 October 2023, which is the date on which Implementing Decision 2023/2409 was adopted. However, the State Secretary decided on 19 July 2022, prior to the date of adoption of that implementing decision, no longer to make use of the option to extend the circle of beneficiaries of temporary protection. It follows, according to that court, that Article 1 of that implementing decision and the extension until 4 March 2025 provided for therein do not apply to the group of persons benefiting from optional protection. (31) Consequently, for that group, temporary protection ended automatically on 4 March 2024.
(c) Third line of case-law: the temporary protection of the group of persons benefiting from optional protection ends automatically at the end of the optional extension period, namely on 4 March 2025
67.The position taken by the Raad van State (Council of State), which illustrates the second line of case-law, has been followed by several Netherlands courts, including the Rechtbank Den Haag, zittingsplaats Zwolle (District Court, The Hague, sitting in Zwolle, Netherlands) which, however, in its judgment of 27 March 2024, (32) developed a different line of reasoning. (33)
68.This third line of case-law is illustrated inter alia by the judgment of the Rechtbank Den Haag, zittingsplaats Roermond (District Court, The Hague, sitting in Roermond, Netherlands) of 19 March 2024, (34) and that of the Rechtbank Den Haag, zittingsplaats Haarlem (District Court, The Hague, sitting in Haarlem, Netherlands) of 27 March 2024, (35) which are referred to by the Raad van State (Council of State) in its order for reference in Case C‑290/24. (36)
69.The Rechtbank Den Haag, zittingsplaats Roermond (District Court, The Hague, sitting in Roermond) held, in essence, that the extension of temporary protection provided for in Article 4(2) of Directive 2001/55 does not create a new situation enabling the State Secretary to carry out a new assessment for the group of persons benefiting from optional protection. According to that court, the fact that Implementing Decision 2023/2409 was adopted after 19 July 2022 is irrelevant. In order to determine whether the duration of the temporary protection of a person belonging to that group has been extended, the only relevant factor is whether that person has already been brought within the scope of Directive 2001/55, and whether he or she was entitled to temporary protection under that directive at the time of the adoption and entry into force of Implementing Decision 2023/2409. Consequently, a Member State’s decision to discontinue the application of Article 7(1) of Directive 2001/55 has no effect on the duration of temporary protection previously granted.
70.Along the same lines, the Rechtbank Den Haag, zittingsplaats Haarlem (District Court, The Hague, sitting in Haarlem) held, in essence, that the duration of temporary protection for the group of persons benefiting from optional protection had not ended automatically on 4 March 2024, but that, for that group too, the duration had been extended until 4 March 2025 by Implementing Decision 2023/2409. Since the Kingdom of the Netherlands has applied Article 2(3) of Implementing Decision 2022/382, the persons belonging to the group of persons benefiting from optional protection are displaced persons within the meaning of Article 2 of that implementing decision. Article 1 of Implementing Decision 2023/2409 extends the temporary protection of all displaced persons covered by Article 2 of Implementing Decision 2022/382 until 4 March 2025, without distinguishing between the different groups referred to in that article or excluding that group. Consequently, that court does not agree with the reasoning of the Raad van State (Council of State) based on a distinction between paragraphs (1) and (2) of Article 4 of Directive 2001/55, according to which that group does not fall within the scope of Implementing Decision 2023/2409 on the sole ground that the State Secretary decided, before 19 October 2023, no longer to make use of the option provided for in Article 2(3) of Implementing Decision 2022/382.
71.In its order for reference in Case C‑244/24, the Rechtbank Den Haag, zittingsplaats Amsterdam (District Court, The Hague, sitting in Amsterdam) appears to agree with that third line of case-law by expressing its doubts as to the interpretation of EU law adopted by the Raad van State (Council of State) in its judgment of 17 January 2024.
72.In the first place, the referring court states that, in the event of shared competence between the European Union and the Member States in a particular area, as is the case in the area of asylum and immigration, the Member States may no longer exercise their competence in that area once the European Union has exercised its competence.
73.In so far as the Kingdom of the Netherlands made use of the option provided for in Article 2(3) of Implementing Decision 2002/382 in granting optional temporary protection to certain persons, those persons fall fully within the scope of Directive 2001/55 by virtue of Article 7(1) thereof, the wording of which indicates that that provision concerns the temporary protection ‘provided for in [that] Directive’. According to the referring court, the temporary protection deriving from that article must, inter alia, comply with Articles 4 and 6 of that directive, which lay down mandatory and exhaustive rules on the duration and termination options of temporary protection, including for the categories of persons to whom Member States have granted temporary protection under Article 7(1) of that directive.
74.Consequently, where a Member State has granted temporary protection on the basis of that provision, that optional temporary protection can only end when the maximum duration of the temporary protection has been reached, or earlier if the Council decides to terminate that protection. No Member State can go back on its decision to grant temporary protection, under that provision, to persons other than those referred to in Article 2(1) and (2) of Implementing Decision 2022/382, since the EU legislature has exercised its competence as regards the duration of temporary protection and the arrangements for its termination in respect of all the beneficiaries under Directive 2001/55.
75.In the second place, the referring court considers that Implementing Decision 2023/2409 does not distinguish between the different groups of persons benefiting from temporary protection, as is apparent from the wording of Article 1 of that implementing decision. It further notes that the proposal for Implementing Decision 2023/2409 states that Directive 2001/55 must ensure the same standards and a harmonised set of rights are applied across the European Union to persons who are received there at the time of the extension of temporary protection, (37) which is also confirmed by recital 7 of that implementing decision. It is therefore not possible for that approach to be reconciled with a situation in which displaced persons who are received under that directive benefit from temporary protection the duration of which varies within the European Union.
76.In the third place, according to the referring court, the fact that the extension of temporary protection is decided by the Council, pursuant to Article 4(2) of Directive 2001/55, does not lead to the conclusion that Member States should, at that point, reassess the circle of beneficiaries of that protection, since the situation for persons benefiting from optional temporary protection has not changed any more than it has for the persons who are directly covered by that directive. (38)
III. The facts of the disputes in the main proceedings and the questions referred for a preliminary ruling
77.The appellant, P, a Nigerian national, held a temporary residence permit in Ukraine valid until 31 January 2023 when Russian forces launched a large-scale invasion of Ukraine on 24 February 2022. Following that invasion, the appellant fled Ukraine for the Netherlands, where he registered in the BRP on 1 June 2022. He was therefore placed under the protection of Directive 2001/55 without the State Secretary assessing whether he could safely and permanently return to Nigeria, and he applied for asylum on 9 August 2022.
78.On 24 August 2023, the State Secretary decided, first, to discontinue the examination of the appellant’s asylum application and, secondly, to terminate his temporary protection under Directive 2001/55 with effect from 4 September 2023.
79.The State Secretary withdrew that decision following a judgment of the Council of State of 17 January 2024, from which it follows, I note, that the State Secretary could not terminate, with effect from 4 September 2023, the temporary protection of the group of persons to which the appellant belonged, in so far as that protection was to end automatically on 4 March 2024. The appellant was informed of this by letter of 24 January 2024.
80.On 7 February 2024, the State Secretary issued a return decision to the appellant, in which he stated that the temporary protection enjoyed by the appellant would end on 4 March 2024. That decision is the subject of the appeal brought before the Rechtbank Den Haag, zittingsplaats Amsterdam (District Court, The Hague, sitting in Amsterdam).
81.In addition to the questions concerning the end date of the temporary protection of the group of persons benefiting from optional protection, which I referred to earlier in my discussion of the third line of case-law, (39) the referring court asks whether a return decision may be issued by a Member State on a date when the third-country national is still legally staying in the territory of that State. (40)
82.In that regard, the referring court notes that it seems to follow from Article 2(1) and Article 6(1) and (6) of Directive 2008/115 that no return decision can be issued in respect of a third-country national who is not staying illegally in the Member State in question. (41) The foregoing indicates that the State Secretary was not competent to issue the return decision as early as 7 February 2024, because the appellant was still staying legally at that time. Consequently, that decision could be premature.
83.However, the referring court considers that there were valid grounds for allowing the State Secretary to take such action. In its judgment of 17 January 2024, the Raad van State (Council of State) held that it was up to the State Secretary to determine how he would inform the persons benefiting from optional temporary protection that that protection would end automatically on 4 March 2024. In order to guarantee their judicial protection, those persons received a letter informing them of the subsequent stages of the procedure, and ultimately, a decision was made to issue return decisions in respect of those persons in two batches, on 7 and 23 February 2024, in order to inform them as early as possible of the consequences of the ending of their legal stay, and to give them a little more time to lodge any appeals. According to the referring court, that approach may be appropriate in so far as Member States are required to carry out the removal of third-country nationals as soon as possible. (42)
84.Moreover, that court states that, in the present case, it follows from the return decision itself that that decision does not take effect until the date on which legal stay ends, since the decision clearly indicates that, from 5 March 2024, the appellant would no longer be staying legally, and that the departure notice period would not start to run until that date. That being so, the court notes that the time limit for bringing an appeal against that decision starts to run from the date on which the decision is issued.
85.In those circumstances, the Rechtbank Den Haag, zittingsplaats Amsterdam (District Court, The Hague, sitting in Amsterdam) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘(1) Is Article 6 of [Directive 2008/115] to be interpreted as precluding the issuing of a return decision on a date when a foreign national is still lawfully resident on the territory of a Member State?
(2) Does it make any difference to the answer to the foregoing question if the return decision contains a date on which the lawful residence ends, where that date is in the near future and, moreover, where the legal consequences of the return decision do not take effect until that later date?
(3) Is Article 1 of [Implementing Decision 2023/2049] to be interpreted as meaning that [the] extension also covers a group of third-country nationals who have already been brought within the scope of [Directive 2001/55] by a Member State via the optional provision of Article 2(3) of [Implementing Decision 2022/382], even though the Member State has chosen at a later point in time to no longer grant temporary protection to that group of third-country nationals?’
86.The three appellants, AI, ZY and BG, of Algerian, Turkish and Pakistani nationality, respectively, held temporary residence permits in Ukraine at the time that Russian forces began a large-scale invasion of Ukraine on 24 February 2022. After leaving Ukraine, the appellants registered in the BRP and applied for asylum at a time when the Netherlands authorities were granting temporary protection to third-country nationals holding temporary residence permits in Ukraine, without assessing whether those third-country nationals were able to return to their country or region of origin in safe and durable conditions. The State Secretary therefore granted those nationals temporary protection under Directive 2001/55.
87.Following the Council of State’s judgment of 17 January 2024, from which it follows that their legal stay was to end automatically on 4 March 2024, the State Secretary, on 7 February 2024, issued return decisions to the appellants, in which he indicated that the temporary protection they enjoyed would end on 4 March 2024. Appeals were lodged against those decisions.
88.By judgments of 19 March 2024 and 27 March 2024, the appeals brought by AI and BG against the return decisions concerning them were upheld and those decisions were annulled.
89.By a judgment of 27 March 2024, ZY’s appeal against the return decision concerning him was dismissed as unfounded.
90.The State Secretary and ZY brought appeals against those judgments before the Raad van State (Council of State).
91.Those appeals concern, in essence, the same question of law, namely the point in time when temporary protection ends for the other categories of displaced persons referred to in Article 7(1) of Directive 2001/55 who have been granted optional temporary protection in accordance with that directive.
92.The referring court explains that, even after the delivery of its judgment of 17 January 2024, which was intended to achieve legal uniformity at national level, the Netherlands courts remain divided as to how Article 4(1) and (2) of Directive 2001/55 should be interpreted where a Member State has made use of the option provided for in Article 7(1) of that directive to grant temporary protection to other categories of displaced persons and it has terminated that temporary protection.
93.In those circumstances, the Raad van State (Council of State) decided to stay the proceedings and refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Must Article 4 of [Directive 2001/55] be interpreted as meaning that, where a Member State has made use of the possibility offered by Article 7(1) of that directive also to grant temporary protection under that directive to additional categories of displaced persons (“the optional group”), the temporary protection given to that optional group continues not only in the case of an automatic extension as referred to in Article 4(1) for the period specified in that provision, but also in the case of a decision to extend the period as referred to in Article 4(2) [of that directive] for the period specified in that provision?
(2) Does it make any difference to the answer to the question of whether the temporary protection given to the optional group continues in the event of a decision to extend it as referred to in Article 4(2) [of Directive 2001/55] that a Member State has decided to terminate the temporary protection given to the optional group before the Council has decided to extend the temporary protection for one year as referred to in that Article 4(2)?’
94.By decision of the President of the Court of 7 May 2024, Cases C‑244/24 and C‑290/24 were joined for the purposes of the written and oral proceedings and the judgment.
95.The referring courts requested that the present cases be dealt with under the expedited preliminary ruling procedure provided for in Article 105 of the Rules of Procedure of the Court of Justice. On 7 May 2024, the President of the Court granted those requests.
96.The appellants in the main proceedings, the Netherlands Government and the Commission submitted written observations and participated in the hearing held on 3 September 2024, during which they responded to questions put to them by the Court for oral answer.
97.I shall examine, in the first place, the third question in Case C‑244/24 and the two questions in Case C‑290/24, which raise the issue relating to the point in time when a Member State may terminate optional temporary protection. In the second place, I shall examine the first two questions in Case C‑244/24, which concern the point in time when a Member State may issue a return decision to persons no longer benefiting from optional temporary protection.
98.These cases are certainly a good illustration of the variety of interpretations which may be adopted by national courts in relation to the same provisions of EU law. In that regard, the orders for reference of the Raad van State (Council of State) and the Rechtbank Den Haag, zittingsplaats Amsterdam (District Court, The Hague, sitting in Amsterdam) inform the Court in a transparent and comprehensive manner of the different legal reasoning adopted by the Netherlands courts. The foundations of the legal debate having thus been laid, it is now for the Court to ensure uniform interpretation of EU law.
99.Both the written observations and the hearing before the Court reflected positions which correspond, in essence, to the three lines of case-law which I have set out above.
100.The Commission expressed a position which essentially corresponds to the first line of case-law, namely that the Netherlands authorities could freely decide that the temporary protection of the group of persons who have benefited from optional protection in the Netherlands would end on 4 September 2023.
101.The Netherlands Government, for its part, appears to agree, in its written observations, with the second line of case-law, arguing in favour of an end date for the temporary protection of 4 March 2024. At the hearing, however, that government appeared to agree with the Commission’s submission that optional temporary protection could be terminated at any time.
102.For their part, the appellants in the cases in the main proceedings argued in favour of the position illustrated by the third line of case-law, which the referring court in Case C‑244/24 appears to share, namely the position that the temporary protection of the group of persons who have benefited from optional protection in the Netherlands ends automatically at the end of the optional extension period, that is to say on 4 March 2025. (43)
103.While I do not agree with all of the Commission’s reasoning, I do support the position it has taken, for the reasons that I will set out below.
104.As a preliminary point, I would observe that, in its original form, the Netherlands legislation provided for the benefit of temporary protection to be extended to third-country nationals who held a valid Ukrainian residence permit – even a temporary one – on 23 February 2022 and who were likely to have left Ukraine after 26 November 2021. This means that, under that legislation, optional temporary protection was not subject to the condition that those third-country nationals had fled Ukraine on or after 24 February 2022, which is the date on which the military invasion by Russian armed forces began.
105.However, I do not think that it can be inferred from that finding that the Kingdom of the Netherlands misapplied the option available to Member States under Article 7(1) of Directive 2001/55 and Article 2(3) of Implementing Decision 2022/382 to enlarge the circle of beneficiaries of temporary protection.
106.Admittedly, it follows from Article 7(1) of that directive that Member States may grant optional temporary protection only to additional categories of displaced persons who ‘are displaced for the same reasons and from the same country or region of origin’ (44) as persons to whom the Council Implementing Decision refers to as being beneficiaries of mandatory protection.
107.In the present case, the reason for the mass influx of displaced persons from Ukraine, as identified by the Council in Implementing Decision 2022/382, is the invasion of Ukraine by Russian armed forces, which began on 24 February 2022 and has since led to an armed conflict. (45)
108.However, it seems to me that, in order for third-country nationals to benefit from optional temporary protection, it should be sufficient that their departure from Ukraine and their inability to return there in safe and durable conditions are linked to that armed conflict, without that departure necessarily having taken place on or after the date of the invasion of Ukraine by Russian armed forces. Thus, at the time such protection is granted, the third-country nationals concerned must be ‘displaced persons’ within the meaning of Article 2(c) of Directive 2001/55 (46) and they must have become displaced as a result of the armed conflict in Ukraine.
Moreover, recital 14 of Implementing Decision 2022/382 must, in my view, guide the Court in its interpretation. In that recital, that legislature expressly invites the Member States to ‘[extend] temporary protection to those persons who fled Ukraine not long before 24 February 2022 as tensions increased or who found themselves in the territory of the Union (e.g. on holidays or for work reasons) just before that date and who, as a result of the armed conflict, cannot return to Ukraine’.
110.In any event, even if the Court were to hold that the Netherlands authorities applied Article 7(1) of Directive 2001/55 and Article 2(3) of Implementing Decision 2022/382 too broadly when they decided to grant optional temporary protection to third-country nationals who were likely to have left Ukraine after 26 November 2021, I would note that it follows from the orders for reference that the four appellants in the cases in the main proceedings are likely to have left Ukraine after 24 February 2022, following the Russian invasion, so that, as far as they are concerned, the individual decision of the Netherlands authorities to grant those third-country nationals such protection was undoubtedly based on the same reasons as those for which the persons covered by Article 2(1) and (2) of Implementing Decision 2022/382 were granted temporary protection.
111.Having made those preliminary remarks, I would observe that it is not disputed that a Member State may withdraw its decision to extend the benefit of temporary protection to persons other than those enjoying mandatory protection under EU law on any date it wishes and from that date forward, so that, as of that date, new persons can no longer be included in the group of persons benefiting from optional protection. On the other hand, it is more difficult to determine whether persons who are already in that group may be deprived of temporary protection at any time, according to the wishes of the Member State which initially granted them that protection. That is the question which must therefore be answered before considering, if appropriate, whether, under EU law, that protection ended on 4 March 2024 or will end on 4 March 2025. (48)
112.As I have already stated, the temporary protection mechanism resulting from Directive 2001/55 is of exceptional character, which means that the protection offered to displaced persons is of limited duration. That duration is governed by Article 4 of that directive, which sets out the maximum duration of the automatic extension of the mechanism (Article 4(1)) and the maximum duration of the optional extension, which requires the adoption of a decision by the Council (Article 4(2)).
113.In accordance with Article 5(1) of Directive 2001/55, the existence of a mass influx of displaced persons is to be established by a Council Decision. According to Article 5(3), that decision is to have the effect of introducing temporary protection for the displaced persons to which it refers, in all the Member States, in accordance with the provisions of that directive. That decision is to designate the specific categories of persons to whom the temporary protection applies and the date on which that protection will take effect.
114.Moreover, it follows from Article 6(1) of Directive 2001/55 that temporary protection is to come to an end when the maximum duration of implementation of the mechanism has been reached or at any time, by a Council Decision to that effect.
115.It follows from those provisions, taken together, that, once the temporary protection mechanism is activated by the Council, that protection must be granted by the Member States to the group of persons benefiting from mandatory protection, as described in the Council decision.
116.The start and end dates for the implementation of that mechanism are to be determined exclusively at EU level, in accordance with the rules laid down in Directive 2001/55. The duration of the protection of the group of persons benefiting from mandatory protection coincides with those dates, and therefore cannot be terminated prematurely by a Member State.
117.The situation is not the same, in my view, as regards the group of persons benefiting from optional protection which may be designated by each Member State pursuant to Article 7(1) of Directive 2001/55 and Article 2(3) of Implementing Decision 2022/382.
118.I consider that, for the persons in that group, the Member States retain control over the duration of the temporary protection they wish to grant them, provided that this duration falls within the time frame for implementation of the temporary protection mechanism defined at EU level. In other words, when Member States decide to make use of the option to extend temporary protection to persons other than those who are part of the group of persons benefiting from mandatory protection, they may not do so before the date of implementation of that mechanism or after the date of its termination, both of which are determined at EU level.
119.Thus, for the group of persons benefiting from optional protection, temporary protection does not begin until a Member State decides to extend the circle of beneficiaries of that protection. Those persons then potentially enjoy the temporary protection provided for in Directive 2001/55 until the maximum duration of the mechanism has been reached or until it is terminated by a Council Decision.
120.However, just as the Member States may choose the categories of displaced persons to whom they wish to grant the optional temporary protection provided for in Directive 2001/55, provided that they satisfy the conditions laid down in Article 7(1) thereof, I consider that those Member States may choose the duration during which they intend to implement that protection. Moreover, in so far as the temporary protection granted under that provision and Article 2(3) of Implementing Decision 2002/382 does not arise from an obligation laid down in EU law, but from a decision of a Member State expressing its wish to enlarge the circle of beneficiaries of that protection, I consider that that Member State should be able to make an autonomous decision to withdraw that protection.
121.Accordingly, the Member States may, in my view, freely decide to terminate – before the end date of the mechanism set at EU level – the temporary protection which they have granted to the group of persons benefiting from optional protection. In other words, unlike in the case of the group of persons benefiting from mandatory protection, the Member States are not obliged to align the duration of the temporary protection of the group of persons benefiting from optional protection either with the automatic extension period provided for in Article 4(1) of Directive 2001/55, or, where applicable, with the optional extension period provided for in Article 4(2) of that directive. As I shall have occasion to clarify below, the Member States must, however, ensure that their decision does not run counter to the objectives of EU law and observes the general principles of that law.
122.In short, as regards the duration of temporary protection, a distinction must, in my view, be drawn between the rules applicable to the group of persons benefiting from mandatory protection and those applicable to the group of persons benefiting from optional protection. That distinction is the logical consequence of the discretion left to the Member States by Article 7(1) of Directive 2001/55 and Article 2(3) of Implementing Decision 2022/382. Those provisions thus allow the Member States to assess, on the basis of their own considerations, whether they wish to make use of the option offered by those provisions and, if so, which categories of persons they wish to use it for, when they wish to use it and for what period of time.
123.However, unlike the Commission, I do not believe that such a distinction can be explained by the fact that the second group should be regarded as falling outside the scope of Implementing Decision 2022/382. Indeed, I would note that Article 2 of that implementing decision is entitled ‘The persons to whom the temporary protection applies’. It is true that Article 2(3) of that implementing decision provides for the optional application of temporary protection to persons other than those referred to in Article 2(1) and (2) thereof. However, that does not mean that the persons referred to in Article 2(3) of Implementing Decision 2022/382 are excluded from the scope of that implementing decision. On the contrary, as soon as a Member State chooses to apply that provision, the persons whom it designates as beneficiaries of temporary protection fall within the scope of that implementing decision and, more broadly, of the temporary protection mechanism put in place by the EU legislature. Those persons then benefit from the protection provided for in Directive 2001/55, that is to say the substantive rights set out in that directive, which that Member State is required to grant them for as long as it considers appropriate.
124.Thus, the finding that the group of persons benefiting, of a Member State’s own volition, from optional protection falls within the scope of Implementing Decision 2022/382 does not preclude that group from being subject to different rules as regards the duration of the temporary protection which that group enjoys, as a result of the discretion which the EU legislature decided to allow the Member States. By virtue of that discretion, Member States have the possibility of reviewing whether it is appropriate to continue to grant temporary protection to the persons in that group, depending on factors such as the ability of those persons to return to their country or region of origin in safe and durable conditions, the existence of possible abuses, a large influx of third-country nationals from other Member States as a result of secondary movements, or the limited reception capacity in the Member States. Those Member States may also be led to conclude that continuing to grant temporary protection to the optional group is no longer necessary to ensure the proper functioning of their system for examining applications for international protection. I would add that such a review, which could lead Member States to discontinue the protection they previously granted to persons who are not, in principle, entitled to it, is consistent with the exceptional and therefore time limited nature of temporary protection.
125.It should also be noted that, in making use of the option available to them for a certain period of time, which does not necessarily correspond to that which applies, on the basis of EU law alone, to the group of persons benefiting from mandatory protection, the Member States do not undermine the objectives pursued by Directive 2001/55 and Implementing Decision 2022/382, which include the safeguarding of the proper functioning of the asylum systems of the Member States in the event of a mass influx of displaced persons. On the contrary, those Member States have already been encouraging the attainment of those objectives for some time. (49)
126.From that point of view, an approach such as that taken by the Kingdom of the Netherlands seems to me to be preferable to one where the categories of persons who can benefit only from optional protection are given no protection at all. Moreover, it must not be forgotten that the very logic of Article 7(1) of Directive 2001/55 and Article 2(3) of Implementing Decision 2022/382 is to enable the Member States both to refuse to grant to any of those categories of persons the temporary protection provided for in that directive, and to grant that protection only to some of those categories of persons. (50)
127.That logic should, in my view, apply equally to the duration of that protection. It is important in that regard to point out, as the Netherlands Government has done, that a solution which requires the Member States which have voluntarily exercised the option to grant temporary protection to certain additional categories of persons to comply with the maximum duration of the temporary protection mechanism laid down at EU level, whether that duration is the result of an automatic extension (4 March 2024) or of an optional extension (4 March 2025) of that mechanism, and which therefore prohibits those Member States from terminating the optional temporary protection early, could thwart the objectives pursued by Directive 2001/55 and by Implementing Decision 2022/382 by encouraging Member States to refrain from exercising the option available to them under Article 7(1) of that directive and Article 2(3) of that implementing decision. (51)
128.The arguments against that view, put forward both by the parties to the present proceedings and by the Netherlands courts which have been called upon to adopt a position on the issue, whether those arguments are in favour of the temporary protection of the optional group ending automatically, on the basis of EU law alone, on 4 March 2024 or on 4 March 2025, seem to me to have to be rejected.
129.In the first place, it is necessary to examine the argument that, since Article 7(1) of Directive 2001/55 provides that the Member States may extend temporary protection as provided for in that directive to additional categories of displaced persons, it must therefore be inferred from that wording that that directive is fully applicable to third-party nationals belonging to the group of persons benefiting from optional protection, including as regards the duration of temporary protection provided for in that directive. In my view, it follows from the clarification provided by the EU legislature that, when a Member State decides to make use of that option, it is required to fulfil the obligations imposed on it by Directive 2001/55, which consist, essentially, in guaranteeing those third-country nationals the substantive rights set out in Chapter III of that directive.
130.Moreover, those third-country nationals will continue to benefit from that optional temporary protection for as long as the mechanism is in effect under EU law, unless the Member State which granted that protection decides in the meantime to discontinue it. Indeed, I consider the discretion which Article 7(1) of Directive 2001/55 and Article 2(3) of Implementing Decision 2022/382 leave to the Member States to be incompatible with the argument that the termination of temporary protection of third-country nationals belonging to the group of persons benefiting from optional protection is governed exclusively by Article 6 of that directive. In my view, Article 6 should, rather, be understood as meaning that, just as the activation of the temporary protection mechanism is a matter for the European Union alone, the termination of that mechanism is governed exclusively by EU law. Within the period during which that mechanism is in effect, the Member States may freely decide, for any period they wish, to make use of the option to extend the benefit of that mechanism to categories of persons other than those who benefit from it automatically under EU law.
131.In the second place, as regards the fact that Article 1 of Implementing Decision 2023/2409 provides that the temporary protection granted to the persons referred to in Article 2 of Implementing Decision 2022/382 is extended by one year until 4 March 2025, I do not believe that it should be inferred that that extension applies mandatorily to the group of persons benefiting from optional protection, pursuant to the option provided for in paragraph (3) of that article, without it being possible for the Member States which made use of that option to terminate that protection early. It should be considered that, like the automatic extension provided for in Article 4(1) of Directive 2001/55, the optional extension provided for in Article 4(2) thereof concerns the temporary protection mechanism as such. Thus, this mechanism is extended for all current and future beneficiaries of temporary protection, without prejudice to the possibility for Member States to reconsider their choice to grant such protection to categories of persons other than those referred to in Article 2(1) and (2) of Implementing Decision 2022/382, this possibility being inherent in the optional nature of Article 7(1) of that directive and Article 2(3) of that implementing decision.
132.In the third place, the disparities in the national laws, along with the secondary movements that can ensue, which may follow from the fact that each Member State is free to determine the period for which it decides to grant the temporary protection provided for in Directive 2001/55 to categories of persons other than those referred to in Article 2(1) and (2) of Implementing Decision 2022/382, flow naturally from the choice made by the EU legislature to lay down an optional provision the implementation of which leaves the Member States a margin of discretion. (53) Moreover, the very fact that such an option is offered by that legislature to the Member States makes it possible to reject the argument that, once the European Union has exercised its competence in an area of shared competence between the European Union and the Member States, the Member States lose their competence to act in that area.
133.In the fourth place, I do not agree with the reasoning of the Raad van State (Council of State) based on a distinction between paragraphs (1) and (2) of Article 4 of Directive 2001/55, according to which the group of persons benefiting from optional protection does not fall within the scope of Implementing Decision 2023/2409 on the sole ground that the State Secretary decided, before 19 October 2023 (the date of adoption of that Implementing Decision), no longer to make use of the option provided for in Article 2(3) of Implementing Decision 2022/382.
134.First, I believe that a clear distinction must be drawn between, on the one hand, a Member State’s decision no longer to grant temporary optional protection to new persons in the future and, on the other, that Member State’s decision to terminate, on a given date, the temporary optional protection from which persons had benefited until that point. It does not seem to me that the first of those decisions necessarily has an impact on the end date of optional protection for persons already benefiting from it. In other words, in a situation where, unlike in the present cases, a Member State has not decided that the temporary optional protection it had chosen to grant to certain categories of persons will be terminated early, that protection would not end automatically on 4 March 2024 solely because that State had decided, before the date of adoption of Implementing Decision 2023/2409, not to grant temporary optional protection to new persons in the future.
135.Secondly, the distinction made by the Raad van State (Council of State) between the period covered by Article 4(1) of Directive 2001/55 and the period covered by Article 4(2) of that directive seems to me to be artificial, in so far as that court regards as decisive the finding that, unlike in the case of the automatic extension provided for in Article 4(1), the optional extension provided for in Article 4(2) requires a new assessment leading to a decision by the Council. I would observe that, because of its exceptional character and therefore its limited duration, the need to continue to apply the temporary protection mechanism is subject to ongoing reassessment, as is expressed not only by the decision taken by the Council pursuant to Article 4(2) of that directive, but also by the Council’s decision to terminate the temporary protection mechanism at any time, on a proposal from the Commission, in accordance with Article 6(1)(b) of that directive. Thus, the Commission’s constant monitoring and review of the situation (54) occur even during the first two years of implementation of that mechanism, so that the decision taken by the Council pursuant to Article 4(2) of Directive 2001/55 merely constitutes an explicit acknowledgement of the need to continue to apply the temporary protection mechanism, that continuation of protection having already previously been subject to ongoing reassessment.
136.In the light of all those factors, I suggest that the Court’s answer to the third question in Case C‑244/24 and to the two questions in Case C‑290/24 should be that Articles 4 and 7(1) of Directive 2001/55, Article 2(3) of Implementing Decision 2022/382 and Article 1 of Implementing Decision 2023/2409 must be interpreted as not precluding a Member State from deciding to terminate, at any time and before the maximum duration of temporary protection set at EU level is reached, temporary protection which it has freely decided to grant to categories of persons displaced from Ukraine other than those referred to in Article 2(1) and (2) of Implementing Decision 2022/382, by exercising the option provided for in Article 7(1) of that directive and Article 2(3) of that implementing decision.
137.However, it should be made clear that, a Member State is implementing EU law when it decides to grant optional temporary protection or to terminate it early, so its margin of discretion is circumscribed by that law.
138.Accordingly, the discretion afforded to the Member States must not be used in a manner which would undermine the objectives of Directive 2001/55 and the effectiveness of that directive. (55) In that regard, it seems to me important to place the emphasis on Chapter IV of that directive, the objective of which is to guarantee that beneficiaries of temporary protection have access to the asylum procedure. Member States should therefore ensure that third-country nationals whose optional temporary protection is withdrawn before the maximum duration set at EU level is reached are not prevented from effectively exercising their right to apply for international protection. This also implies, as the Netherlands Government acknowledged at the hearing, that applications for international protection which have not been withdrawn must be examined.
139.Moreover, the Member States must exercise the option available to them in accordance with the general principles of EU law, including the principles of legal certainty and protection of legitimate expectations. (56)
140.It should be recalled that the principle of legal certainty requires that rules of law be clear, precise and predictable in their effect, especially where they may have negative consequences for individuals and undertakings, so that persons may ascertain unequivocally what their rights and obligations are and may take steps accordingly. (57)
141.I would observe, in that regard that the Kingdom of the Netherlands formalised, in a regulation of 17 August 2022, on the one hand, the designation of the categories of persons forming the group of those benefiting from optional protection and, on the other hand, the date on which that protection was to end, which was, initially, 4 March 2023. (58) Subsequently, that date was postponed, by a regulation of 1 March 2023, to 4 September 2023. (59) It seems to me that those rules are clear, precise and predictable in their effects.
142.The subsequent uncertainty as to the exact end date of the temporary protection of the group of persons benefiting from optional protection arose as a result of the diverging positions of the Netherlands courts. The present references for a preliminary ruling are intended precisely to put an end to that uncertainty.
143.As regards the principle of the protection of legitimate expectations, it must be borne in mind that the right to rely on that principle extends to any person in a situation in which a national administrative authority has caused him or her to entertain expectations which are justified by precise assurances provided to him or her. (60) In the present case, I do not detect any specific assurances, either in the letters of the State Secretary or in the Netherlands legislation, which may have been able to create, in the mind of the group of persons benefiting from optional protection, a sufficient level of confidence in the fact that the duration of that protection would be identical to the maximum duration set at EU level. (61)
144.I would add that the fact that the Netherlands authorities decided to postpone until 4 March 2024 the end date of the protection enjoyed by the appellants does not appear to me to be open to challenge in the light of the principles of legal certainty and protection of legitimate expectations, since, by that postponement, those authorities intended to comply with the judgment of the Council of State of 17 January 2024, which seems to me to be compatible with the requirements of the rule of law. It is true that the requirements of clarity, precision and predictability of the rules of law could have led those authorities to adopt another regulation to formalise the date of 4 March 2024. That said, in so far as, having regard to the rules deriving from Directive 2001/55, Implementing Decision 2022/382 and Implementing Decision 2023/2409, the Netherlands authorities were, in my view, justified in providing for the date of 4 September 2023, I do not believe that they can be criticised for having adopted a measure favourable to the persons concerned when they decided to postpone that date to 4 March 2024.
145.Ultimately, it is for the referring courts to determine whether the Kingdom of the Netherlands exercised the option available to it, under Article 7(1) of Directive 2001/55 and Article 2(3) of Implementing Decision 2022/382, in compliance with the principles of legal certainty and protection of legitimate expectations.
146.By its first two questions, which I shall consider together, the referring court in Case C‑244/24 asks, in essence, whether Article 6 of Directive 2008/115 must be interpreted as precluding the issuing of a return decision to a third-country national, who is legally staying in the territory of a Member State by virtue of the option exercised by that Member State to grant temporary protection to that third-country national, before the date on which that protection ends, including where the effects of that decision are suspended until that date and where that date is in the near future.
147.According to Article 2(1) of Directive 2008/115, that directive applies to third-country nationals staying illegally on the territory of a Member State.
148.Moreover, it follows from Article 6(1) of that directive that Member States are to issue a return decision to any third-country national staying illegally on their territory.
149.In line with those provisions, it seems to me to be clear from the case-law of the Court that a Member State may issue a return decision to a third-country national only if he or she is staying illegally on its territory. (62)
150.Admittedly, Article 6(6) of Directive 2008/115 provides, inter alia, that it does not prevent Member States from adopting a decision on the ending of a legal stay together with a return decision. However, that provision does not go so far as to allow a return decision to be issued before the end of the legal stay of the person concerned, even if that decision takes effect only from the date on which the legal stay ends.
151.In my view, neither the specific context of the present cases nor the provisions of Chapter V of Directive 2001/55 (63) on the return of persons after temporary protection has ended militate in favour of relaxing the rule that a return decision may not be issued as long as the legal stay of the person in question has not ended. I would add that issuing such a decision early and postponing its effects until the stay becomes illegal makes it impossible to take into account any changes in the individual circumstances of the person concerned by that decision which may have occurred in the interim. (64) Moreover, that practice may have a negative impact on the third-country nationals concerned, since Article 3(1) of Regulation (EU) 2018/1860 of the European Parliament and of the Council of 28 November 2018 on the use of the Schengen Information System for the return of illegally staying third-country nationals (65) requires Member States to enter an alert on return regarding those nationals into that system (SIS) without delay following issue of a return decision.
152.The concerns expressed both by the referring court in Case C‑244/24 and by the Netherlands Government should, however, be addressed. Those concerns relate, first, to the risk of disorganisation to which the competent authorities would be exposed as a result of having to issue a very large number of return decisions simultaneously, when temporary protection ends. Secondly, the early issue of a return decision the effects of which are suspended until the stay becomes illegal promotes the judicial protection of the persons concerned by enabling them to prepare any appeals they may wish to bring. Those factors call for the following remarks on my part.
153.In the first place, it seems to me that the risk of disorganisation referred to can be avoided if the competent authorities prepare the return decisions sufficiently in advance. In that regard, the fact that it is impossible for those authorities to issue such decisions before the stay becomes illegal does not mean that it is impossible for them to take preparatory measures to that end, for example by hearing the persons concerned.
154.In the second place, while the Member States are obliged to issue a return decision to any third-country national staying illegally on their territory, it could be accepted that, in a situation involving a mass influx of displaced persons, such an obligation does not go so far as to require those States to issue such a decision immediately after the date on which the temporary protection ends, as long as that decision is issued shortly after that date.
155.In the third place, the judicial protection of the persons concerned could be sufficiently promoted by giving them advance notice that their temporary protection will end on a certain date.
156.Having regard to all the foregoing considerations, I propose that the Court answer the questions referred by the Rechtbank Den Haag, zittingsplaats Amsterdam (District Court, The Hague, sitting in Amsterdam, Netherlands) and by the Raad van State (Council of State, Netherlands) as follows:
(1) Article 4 and Article 7(1) of Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof, Article 2(3) of Council Implementing Decision (EU) 2022/382 of 4 March 2022 establishing the existence of a mass influx of displaced persons from Ukraine within the meaning of Article 5 of Directive 2001/55/EC, and having the effect of introducing temporary protection, and Article 1 of Council Implementing Decision (EU) 2023/2409 of 19 October 2023 extending temporary protection as introduced by Implementing Decision (EU) 2022/382
must be interpreted as not precluding a Member State from deciding to terminate, at any time and before the maximum duration of temporary protection set at EU level is reached, temporary protection which it has freely decided to grant to categories of persons displaced from Ukraine other than those referred to in Article 2(1) and (2) of Implementing Decision 2022/382, by exercising the option provided for in Article 7(1) of that directive and Article 2(3) of that implementing decision.
Where a Member State decides to terminate optional temporary protection early, it must ensure that the discretion afforded to it by EU law is not used in a manner which would undermine the objectives of Directive 2001/55 and the effectiveness of that directive. That Member State is also required to observe the general principles of that law, which include, in particular, the principles of legal certainty and protection of legitimate expectations.
(2) Article 6 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
must be interpreted as precluding the issuing of a return decision to a third-country national, who is legally staying in the territory of a Member State by virtue of the option exercised by that Member State to grant temporary protection to that third-country national, before the date on which that protection ends, including where the effects of that decision are suspended until that date and where that date is in the near future.