delivered on 10 April 2025 (1)

Case C‑97/24

The Minister for Children, Equality, Disability, Integration and Youth,

Ireland,

The Attorney General,

joined party:

The United Nations High Commissioner for Refugees

(Request for a preliminary ruling from the High Court (Ireland))

(Reference for a preliminary ruling – Liability of a Member State for a breach of EU law – Sufficiently serious breach – Force majeure – Asylum policy – Directive 2013/33/EU – Articles 17 and 18 – Standards for the reception of applicants for international protection – Massive influx of persons in need of temporary or international protection – Lack of access to material reception conditions – Article 18(9) – Basic needs – Exhaustion of housing capacity – Charter of Fundamental Rights of the European Union – Articles 1 and 4 – Human dignity and risk of inhuman or degrading treatment)

This request for a preliminary ruling has been made in the context of a dispute between S.A. and R.J., two applicants for international protection (together, ‘the applicants’), on the one hand, and the Minister for Children, Equality, Disability, Integration and Youth (Ireland; ‘the Minister’), Ireland and the Attorney General (Ireland) (together, ‘the Irish authorities’), on the other hand, concerning the grant of damages for failure to provide the applicants with accommodation, food, water and other material reception conditions to meet their basic needs.

The applicants seek compensation on the ground that the national authorities failed to comply with the obligations arising from Directive 2013/33/EU laying down standards for the reception of applicants for international protection. (2)

The liability claim under EU law is based on the case-law deriving from the seminal judgments in Francovich and Others (3) and in Brasserie du pêcheur and Factortame (4) (together, ‘the Francovich case-law’) that established the principle of State liability for loss and damage caused to individuals as a result of breaches of EU law for which the State can be held responsible and that is inherent in the system of the treaties on which the European Union is based. (5)

According to that principle, individuals who have been harmed have a right to reparation if three conditions are met: the rule of EU law that was breached must be intended to confer rights on them; the breach of that rule must be sufficiently serious; and there must be a direct causal link between that breach and the loss or damage sustained by the individuals (‘the Brasserie du pêcheur and Factortame test’). (6) It is, in principle, for the national courts to apply the criteria for establishing the liability of Member States for damage caused to individuals by breaches of EU law, in accordance with the guidelines laid down by the Court of Justice for the application of those criteria. (7)

In the present case, while the applicants claim that the three limbs of that test are fulfilled, the Irish authorities invoke force majeure such as to preclude a finding of a sufficiently serious breach and thus fulfilment of the requirements of the second limb of the Brasserie du pêcheur and Factortame test. Those authorities do not dispute that they failed to provide accommodation to the applicants as required under the national rules implementing Directive 2013/33. However, they deny that the applicants have any entitlement to damages since, in their submission, the breaches of EU law were caused by circumstances which amount to force majeure and were not therefore ‘sufficiently serious’ within the meaning of the second limb of that test.

The present case therefore raises the issue whether national authorities may rely on force majeure as a defence to a claim for damages for their breach of Directive 2013/33.

Articles 2, 17 and 18 of Directive 2013/33 are relevant for the present Opinion. In particular, Article 18(9) of that directive sets out:

‘In duly justified cases, Member States may exceptionally set modalities for material reception conditions different from those provided for in this Article, for a reasonable period which shall be as short as possible, when:

an assessment of the specific needs of the applicant is required, in accordance with Article 22;

housing capacities normally available are temporarily exhausted.

Such different conditions shall in any event cover basic needs.’

Directive 2013/33 is transposed into Irish law by the European Communities (Reception Conditions) Regulations 2018 (8) (‘the Regulations’).

The Regulations define material reception conditions as being ‘provided to a recipient for the purposes of compliance with [Directive 2013/33]’ and that they constitute the following:

the housing, food and associated benefits provided in kind,

the daily expenses allowance, and

clothing provided by way of financial allowance under section 201 of the Social Welfare Consolidation Act 2005’.

The daily expenses allowance is defined as ‘that part of the material reception conditions that constitutes a weekly payment made, under a scheme administered by the Minister for Employment Affairs and Social Protection, to a recipient in order for the recipient to meet incidental, personal expenses’.

Regulation 4 of the Regulations provides for the form of exception found in Article 18(9) of Directive 2013/33 where the normally available accommodation capacity is temporarily exhausted, but makes clear that such exceptional provision must nonetheless meet ‘the recipient’s basic needs’.

The referring court explains that in one of the cases before the Irish courts, in the judgment in SY v. Minister for Children, Equality, Disability, Integration and Youth, (9) the High Court (Ireland) held that the Minister was in breach of his obligations under the Regulations and Article 1 of the Charter of Fundamental Rights of the European Union (‘the Charter’) in failing to provide an applicant for international protection with accommodation, food or sanitary facilities, and granted a declaration that the failure by the Minister to provide to the applicant the ‘material reception conditions’ pursuant to the Regulations is unlawful and in breach of the applicant’s rights under Article 1 of the Charter. There was no appeal by the Minister against that judgment. SY did not, however, claim damages.

II. Facts

18.The applicants requested that the Irish authorities recognise their state of vulnerability, but their applications were not accepted.

19.Following a change in the eligibility conditions for the subsistence allowance, the applicants were each granted, on 5 and 20 April 2023 respectively, with retroactive effect from the date on which their applications for international protection were lodged, a daily expenses allowance in the amount of EUR 38.80 per week. They were also able to obtain payments to cover ad hoc additional needs.

21.Subsequently, the applicants brought actions against the Irish authorities before the High Court, the referring court, seeking damages for failure to provide housing, food, water and other material reception conditions meeting their basic needs.

22.Before that court, the Irish authorities do not dispute that the applicants should be granted the declarations sought in the proceedings concerning a breach of the national rules implementing Directive 2013/33 and Article 1 of the Charter. However, they deny that the applicants have any entitlement to damages, since the breaches of EU law were, in their view, caused by circumstances which amount to force majeure and were not therefore ‘sufficiently serious’ under the second limb of the Brasserie du pêcheur and Factortame test.

23.The Irish authorities have not pleaded lack of financial resources. However, they argue that the unprecedented influx of third-country nationals seeking temporary or international protection in Ireland has exhausted the accommodation capacity provided by those authorities, with the result that, for a period of four and a half months, single, non-vulnerable male adults were left without accommodation offered by the national authorities. Those authorities nevertheless made all reasonable efforts to provide accommodation for the persons concerned and to meet other reception needs. Thus, the infringement of EU law at issue was not intentional.

24.The Irish authorities also argue that force majeure is in any event available as a free-standing defence under EU law.

25.The referring court notes that a report published in 2020 had advised that Ireland should plan for the reception of applicants for international protection on the basis of approximately 3500 new applications per year. However, following the Russian invasion of Ukraine, almost 100000 third-country nationals seeking temporary or international protection arrived in Ireland between February 2022 and May 2023, more than 80000 of whom had to be accommodated by the Irish authorities.

26.In the light of that situation, the referring court raises the question of the possibility of a Member State’s relying on force majeure in order to avoid liability in the event of an infringement of EU law, in particular where the obligations at issue derive from inviolable rights under the Charter and are expressed in mandatory, non-derogable terms in Directive 2013/33.

27.If such a possibility were to be recognised, it would then be necessary to determine whether force majeure could be relied on where it was not possible to deal with the circumstances at issue without excessive sacrifice, where all reasonable measures were adopted or where it was objectively impossible to comply with EU law. The nature of the rules at issue in the main proceedings could justify a rigorous examination, especially since the need for additional permanent accommodation capacity ceased to be unforeseeable from a certain point in time. It could thus have been expected that the Irish authorities, which had sufficient financial resources, would make efforts to find private housing for the persons concerned, through the provision of accommodation vouchers or higher amounts of financial assistance, or to build emergency shelters.

28.In those circumstances, the High Court decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

(1)‘(1) Where “force majeure” is not found as a defence in a Directive or implementing Regulations [at] issue, is such a defence nonetheless available as a defence to a Francovich damages claim for a breach of an EU law obligation that confers rights on individuals which derive from the fundamental right to human dignity contained in Article 1 of the Charter (whether as a defence within the second limb of the [Brasserie du pêcheur and Factortame] test or otherwise)?’

(2)If the answer to question (1) is “yes”, what are the parameters and proper scope of that force majeure defence?’

III. The procedure before the Court

29.The applicants, the Minister, the Italian Government, the United Nations High Commissioner for Refugees and the European Commission have lodged written observations. The applicants, the Minister, the Italian Government and the Commission submitted oral observations at the hearing, which took place on 5 February 2025.

30.By its questions, which should be examined together, the referring court asks, in essence, whether a Member State may rely on force majeure as a defence in a damages action based on State liability for breach of EU law obligations under Directive 2013/33 that form part of the fundamental right to human dignity enshrined in Article 1 of the Charter. If so, that court seeks further clarification on the concept of a ‘sufficiently serious’ breach within the meaning of EU law and under which conditions such a defence may be relied on.

31.Before delving into the question of whether a force majeure defence is available in the context of a claim for damages under the Francovich case-law, it should be pointed out that the question asked by the referring court seems to be based on the assumption that the situation at issue does not fall under Article 18(9)(b) of Directive 2013/33, which lays down the rules for cases where housing capacities that are normally available are temporarily exhausted. Therefore, it is necessary first to examine whether that provision may apply to the present circumstances.

32.If the situation at issue falls within Article 18(9) of Directive 2013/33, that provision establishes a framework within which Member States must act. In that case, the issue of force majeure arises only if the circumstances of the present case were not contemplated by the legislature.

33.In that respect, in the judgment of 8 June 2023, UFC – Que choisir and CLCV, (10) involving the Package Travel Directive, (11) the Court held that, despite the absence of any reference to force majeure in a directive, the concept of ‘unavoidable and extraordinary circumstances’ gives concrete expression to the concept of ‘force majeure’ in the context of that directive. (12) In another context, in the judgment of 26 September 2013, ÖBB-Personenverkehr, the Court ruled that the regulation governing rail passenger rights deliberately omits to exempt parties from liability due to unavoidable and extraordinary circumstances. (13) Following that case-law, one could argue that, by providing for a derogation in Article 18(9) of Directive 2013/33, the EU legislature has already regulated the matter, thereby precluding the need to consider a general force majeure defence. This would render the discussion about its availability in a claim under the Francovich case-law unnecessary.

34.For that reason, the present Opinion is structured into two parts. First, I shall examine the definition of force majeure and assess whether Article 18(9) of Directive 2013/33 may constitute its specific expression in circumstances where there is an exhaustion of housing capacity due to a massive influx into Ireland of persons in need of international protection (Section A). Second, I shall assess the force majeure defence within the framework of the second limb of the Brasserie du pêcheur and Factortame test, considering its implications for determining the existence of a sufficiently serious breach (Section B).

35.At the outset, I should recall that the concept of force majeure has been relied on before the Court in various spheres of EU law and is understood in the case-law as referring to ‘abnormal and unforeseeable circumstances which were outside the control of the party by whom it is pleaded and the consequences of which could not have been avoided in spite of the exercise of all due care’. (14) Since the concept of force majeure does not have the same scope in the various spheres of application of EU law, its meaning must be determined by reference to the legal context in which it is to operate. (15)

may constitute a possible defence for a failure of a Member State to fulfil its obligations under EU law. Indeed, it has been recognised that a Member State which encounters temporarily insuperable difficulties preventing it from complying with its obligations under EU law may plead force majeure. (16)

37.Nevertheless, it is apparent from the case-law that the threshold for demonstrating the existence of circumstances that would amount to force majeure is high. Even in abnormal and unforeseeable circumstances, a Member State is required to take all measures within its power to comply with EU law. (17) In the judgment in Vilkas, in the context of a European arrest warrant framework decision, the test was put in terms of the consequences of unforeseen and unforeseeable actions not being avoided in spite of the exercise of all due care by the authorities, (18) a concept which is to be interpreted strictly. (19) That formulation was adopted most recently in the judgment in UFC – Que choisir and CLCV. (20) Furthermore, as the expression ‘temporarily insuperable difficulties’ indicates, (21) the strict interpretation of force majeure entails that, if the event causing the inability to perform is temporary, the EU law obligation may only be suspended for the duration of the event and for a reasonably short period.

38.It is also well established that difficulties in the domestic legal order cannot justify a failure to observe obligations arising under EU law. (22) Furthermore, force majeure cannot refer to difficulties of a domestic nature deriving from a Member State’s political or administrative organisation or because of a lack of powers, knowledge, means or resources. (23)

39.In the case-law, most recently during the COVID-19 pandemic, some Member States have invoked force majeure due to the unprecedented health crisis. (24) However, the Court has held that, while that pandemic constituted unavoidable and extraordinary circumstances, it did not automatically justify a general suspension of obligations under EU law. The Court has required a specific demonstration of how the pandemic directly prevented compliance with the directive at issue and why no alternative measures could have been taken to fulfil its obligations under EU law. (25)

40.In sum, a Member State which encounters temporarily insuperable difficulties preventing it from complying with its specific obligations under EU law may plead force majeure, but only for the period necessary in order to resolve those difficulties.

41.Directive 2013/33 lays down minimum standards for reception. (26) Article 17 thereof sets out general rules on material reception conditions and health care. (27) In particular, 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 for international protection. Member States must also ensure 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. Article 18 of Directive 2013/33 sets out modalities for material reception conditions.

42.Article 18(9)(b) of Directive 2013/33 provides that ‘in duly justified cases, Member States may exceptionally set modalities for material reception conditions different from those provided for in this Article, for a reasonable period which shall be as short as possible, when … housing capacities normally available are temporarily exhausted.’ It thus allows Member States to exceptionally deviate from the standard material reception conditions, provided that such deviation is duly justified and applies only for a reasonable period which is as short as possible.

43.Following the Court’s case-law on derogations, that provision must be applied appropriately in order to deal with precise requirements and specific situations. (28) Furthermore, as an exceptional arrangement, Article 18(9)(b) of Directive 2013/33 must be interpreted strictly and impose on the authority taking the decision the burden of proving that the requisite conditions are present for each derogation. (29) It is for the national court to verify whether those conditions are fulfilled in the present case.

44.Article 18(9) of Directive 2013/33 is designed to provide a certain amount of flexibility to Member States to act in extraordinary situations. While that provision does not explicitly use the term ‘force majeure’, it refers to the terms ‘exceptionally’, ‘in duly justified cases’ and ‘reasonable period’. Those elements can be understood as the specific expression of the conditions of force majeure corresponding to abnormal and unforeseeable circumstances, to the extent that the event causing the loss of housing capacity corresponds to an abnormal and unforeseeable event. Therefore, that provision could be interpreted as a specific legislative recognition of exceptional circumstances that justify a temporary derogation from obligations set out in Article 18 of that directive. One of those specific situations is the temporary exhaustion of housing capacities normally available, provided that the event causing the loss of housing capacity is proven to be unforeseeable and abnormal.

45.It follows that Article 18(9) of Directive 2013/33 can be interpreted as dealing with extraordinary circumstances and thus giving concrete expression to the concept of force majeure. When the abnormal and unforeseeable circumstances deplete housing capacity, making it impossible to guarantee the usual standards of reception, (30) the situation, for the period necessary to resolve those difficulties, falls under point (b) of that provision.

46.In that respect, in its judgment in Commission v Hungary (Reception of applicants for international protection), (31) the Court ruled that ‘in adopting [Directive] 2013/33, the EU legislature was also careful to take into account the situation where a Member State might face a very significant increase in the number of applications for international protection’, adding that ‘Article 18(9) of Directive 2013/33 allow[s] a partial derogation from the provisions of that directive where … accommodation capacities at reception centres are exhausted’. (32) It can be inferred from that judgment that Article 18(9) of Directive 2013/33 provides for exceptional circumstances when housing capacities for applicants of international protection are exhausted. In particular, the reference to ‘very significant increase’ in applications for international protection clearly highlights that this provision is meant to address extraordinary situations rather than normal difficulties.

47.Moreover, by way of analogy, if an event such as the COVID-19 pandemic was deemed to be an event potentially falling within the realm of a directive such as the Package Travel Directive, then an event like a massive influx of refugees may also be regulated by the legislature and thus fall within a framework of a directive. Furthermore, if the Court acknowledges that extraordinary circumstances can be specifically regulated by secondary legislation in the realm of consumer law under the Package Travel Directive, then it can be reasonably expected that fundamental social rights – such as those under Directive 2013/33 – can also be subject to regulation by the legislature in extreme situations, such as a massive influx of refugees that exhausts existing housing capacity, provided that the situation was unforeseeable in that it exceeded all reasonable forecasts.

48.However, such a massive influx of refugees cannot be regarded as constituting an exceptional situation for an unlimited period since, at a certain moment, that situation loses its characterisation as an abnormal and unforeseeable event. The reference to a ‘reasonable period’ in Article 18(9) of Directive 2013/33 supports this interpretation. In addition, that provision contains a requirement of a ‘duly justified case’ which, according to the Court’s case-law, implies a specific demonstration showing that a massive influx of persons seeking protection prevented compliance with the directive at issue. It is for the national court to verify whether those conditions are fulfilled in the present case.

49.This suggests that, in the present case, Article 18(9) of Directive 2013/33 should be considered as the proper defence provided that the resolution of difficulties lasts for a reasonable period. It follows that, once that period has ended, the Member State can no longer rely on that provision. Furthermore, it should be observed that Article 18(9)(a) and (b) of that directive deals with two very specific scenarios, that is, the assessment of specific needs of the applicant (a) and the temporary exhaustion of housing capacities (b). It follows that Article 18(9) of Directive 2013/33 does not regulate other scenarios (such as natural disasters or wars, which were discussed during the hearing before the Court) where housing is inexistent or absent due to insuperable difficulties taking place within or nearby the Member State concerned. Therefore, the interpretation of Article 18(9) of Directive 2013/33 as a specific expression of force majeure does not preclude the fact that Member States may invoke force majeure as a general defence in other scenarios.

50.In conclusion, given its clear function as a limited derogation for exceptional circumstances, Article 18(9) of Directive 2013/33 should be considered as a specific expression of force majeure. Hence, a massive influx of applicants for international protection cannot amount to a stand-alone defence of force majeure, since that provision already provides for a framework for handling such influxes. In the present case, a Member State’s authorities cannot rely on force majeure as a defence for their failure to provide for the basic needs of an applicant of international protection outside the scope of Article 18(9) of Directive 2013/33. (33)

51.However, if the situation does not concern a temporary exhaustion of housing capacities due to a great number of applications for international protection, then force majeure – as a separate and more general excuse – could become relevant as part of the second limb of the Brasserie du pêcheur and Factortame test.

52.It follows that a situation of temporary exhaustion of housing capacities due to a massive influx of refugees falls under Article 18(9)(b) of Directive 2013/33, provided that the national court ascertains that the conditions for the application of that provision are satisfied. In that case, the questions put by the referring court should be reformulated, since the conditions for the application of the Brasserie du pêcheur and Factortame test are examined on the assumption that Article 18(9) of that directive governs the situation at issue.

Reformulation of the questions referred

53.If the Court considers Article 18(9) of Directive 2013/33 to be applicable to a situation of a massive influx of persons applying for international protection that leads to the exhaustion of ordinary housing capacity in the host Member State, then the questions referred should be reformulated to the effect that the referring court asks the Court whether Article 18(9) of Directive 2013/33, read in the light of the right to human dignity enshrined in Article 1 of the Charter, given its clear function as a limited derogation for exceptional circumstances, must be interpreted as precluding, in the context of a claim for damages, that Member State from invoking force majeure on the grounds of exhaustion of housing capacity due to such an influx.

The application of the Brasserie du pêcheur and Factortame test

Conduct in breach of EU law

54.Given that Articles 17 and 18 of Directive 2013/33 establish the general obligation to provide material reception conditions, including housing, a failure to comply with those provisions would typically constitute a breach. However, if Article 18(9) of that directive allows for a derogation in cases of temporary exhaustion of housing capacity and is interpreted as an expression of force majeure, then the Member State’s failure to provide housing might not necessarily be deemed unlawful, provided that the conditions for invoking that provision are met. In that case, the breach within the meaning of the Brasserie du pêcheur and Factortame test would not stem from Articles 17 and 18 of Directive 2013/33 directly, but rather from a potential misapplication or wrongful invocation of Article 18(9) of that directive. If a Member State improperly claims force majeure under Article 18(9) of Directive 2013/33 without meeting its conditions, then the breach would relate to that provision itself.

55.Consequently, if Article 18(9) Directive 2013/33 is misapplied – for example, if the conditions for derogation are not met – then the Member State may still be in breach of its obligations under that directive. In such a case, State liability could arise, provided that the breach is sufficiently serious under EU law.

A sufficiently serious breach of EU law

The test set out by the case-law

56.The Court has held that, where the Member States have discretion, a sufficiently serious breach means that there has been an obvious and serious disregard by a Member State of the limits on that discretion. (34) Therefore, it is said that the Brasserie du pêcheur and Factortame test is ‘discretion-dependent’. (35)

57.The Court, in paragraph 55 of the judgment in Brasserie du pêcheur and Factortame, stated that the decisive test for finding that a breach of EU law is sufficiently serious is whether the Member State or the EU institution concerned manifestly and gravely disregarded the limits on its discretion. In relation to assessing whether a Member State manifestly and gravely disregarded the limits placed on its discretion, the Court listed certain factors which may be taken into account. (36) In paragraph 56 of that judgment, the Court stated that the factors which the competent court may take into consideration include the clarity and precision of the rule breached, the measure of discretion left by that rule to the national or EU authorities, whether the infringement and the damage caused were intentional or involuntary, whether any error of law was excusable or inexcusable, (37) the fact that the position taken by an EU institution may have contributed towards the omission, and the adoption or retention of national measures or practices contrary to EU law. (38) In any event, a breach of EU law will clearly be sufficiently serious if it has persisted despite a judgment finding the infringement in question to be established, or a preliminary ruling or settled case-law of the Court on the matter from which it is clear that the conduct in question constituted an infringement. (39)

58.If, however, the Member State had only considerably reduced, or even no, discretion, the mere infringement of EU law may be sufficient to establish the existence of a sufficiently serious breach. (40)

Whether Article 18(9) of Directive 2013/33 leaves discretion to Member States

59.Article 18(9) of Directive 2013/33 appears to leave some discretion to Member States in how they manage situations where housing capacity is exhausted. In that respect, that provision allows Member States to exceptionally set different modalities for material reception conditions when housing capacities are temporarily exhausted. This suggests that Member States have some flexibility in deciding how to provide material reception conditions when housing is unavailable. In that respect, it should be observed that Article 18(9) of Directive 2013/33 does not define precisely how Member States should handle capacity shortages, which implies that they have some discretion in deciding on which specific measures to take – whether it be emergency shelters, temporary housing, financial support, or other solutions. Such a conclusion is supported by the case-law of the Court, which makes it clear that the obligation to provide material reception conditions is mandatory, but Member States have some discretion as to how this is to be achieved. (41)

60.For instance, in its judgment in Saciri, the Court acknowledged that Member States have discretion in choosing how to provide material reception conditions – either through direct accommodation or financial allowances. However, as rightly pointed out by the Commission at the hearing, that discretion applies to the means but not to the principle. While that judgment addressed general reception obligations rather than derogations under Article 18(9) of Directive 2013/33, the principle that Member States have some flexibility on implementation at their disposal within EU law constraints is also relevant in the case at hand.

61.It should be noted that Article 18(9) of Directive 2013/33 establishes both the basis and the limit of the Member States’ power to derogate from Article 18(1) to Article 18(8) – and not from the broader obligations in the directive or EU asylum law as a whole. Article 18(9) of Directive 2013/33 confers only very limited discretion on the Member States, since it refers to setting different modalities for material reception conditions. Moreover, Article 18(9) of Directive 2013/33 establishes, in unequivocal terms, an obligation to cover ‘basic needs’ of applicants for international protection. It follows that, while Member States can choose the method for granting reception conditions, they cannot avoid their obligations under EU law to provide for basic needs, such as adequate accommodation for applicants for international protection, (42) in order to ensure that the fundamental rights of those applicants are respected.

62.In that respect, it is important to point out that Directive 2013/33 aims to ensure that the fundamental right to human dignity enshrined in Article 1 of the Charter, which is closely linked to Article 4 of the Charter, (43) is fully respected. The right to human dignity is an absolute and non-derogable right, (44) forming the foundation of other fundamental rights, and cannot be limited.

63.Accordingly, the Court has repeatedly reaffirmed that the general scheme and purpose of Directive 2013/33, as well as the observance of the inviolability of human dignity under Article 1 of the Charter, absolutely preclude Member States from failing to provide an asylum seeker, even temporarily, with the minimum material reception conditions laid down in that directive. (45) As to the nature of the minimum standards required of Member States, recital 11 of Directive 2013/33 states that applicants for international protection have to be ensured a ‘dignified standard of living’. (46)

64.In particular, in the judgment in Saciri, the Court emphasised that, whether material reception conditions are granted in kind or in the form of financial allowances or vouchers, they must be sufficient to ‘meet the basic needs of asylum seekers’, (47) meaning that they must be sufficient to ensure a dignified standard of living, be adequate for the health of applicants and be capable of ensuring their subsistence by enabling them to obtain housing, if necessary, on the private rental market. (48) For the purposes of the present case, it must be pointed out that the Court specifically held that it is for the Member States to ensure that national authorities meet the minimum standards for the reception of asylum seekers, saturation of the reception networks not being a justification for any derogation from meeting those standards. (49)

65.Furthermore, the Court has ruled that respect for human dignity within the meaning of Article 1 of the Charter requires the person concerned not finding himself or herself in a situation of extreme material poverty that does not allow that person to meet his or her most basic needs such as a place to live, food, clothing and personal hygiene, and that undermines his or her physical or mental health or puts that person in a state of degradation incompatible with human dignity. (50)

65.Furthermore, the Court has held that Article 4 of the Charter would be infringed in the case where the indifference of the authorities of a Member State would result in a person wholly dependent on State support finding himself or herself, irrespective of his or her wishes and his or her personal choices, in a situation of extreme material poverty that does not allow him or her to meet his or her most basic needs, such as, inter alia, food, personal hygiene and a place to live, and that undermines his or her physical or mental health or puts him or her in a state of degradation incompatible with human dignity. (51)

66.In that respect, in a case concerning the withdrawal of material reception conditions, the Court reaffirmed that even a temporary failure to provide the full set of material reception conditions or those relating to housing, food or clothing would be irreconcilable with the requirement to ensure a dignified standard of living for the applicant, as it would preclude that applicant from being allowed to meet his or her most basic needs such as a place to live, food, clothing and personal hygiene. (52)

67.In the light of the foregoing, I take the view that Article 18(9) of Directive 2013/33, read in the light of the right to human dignity and the protection against inhuman or degrading treatment enshrined in Articles 1 and 4 of the Charter, must be interpreted, first, as a specific expression of force majeure, given its clear function as a limited derogation for exceptional circumstances; second, as applying to a situation of a massive influx of persons applying for international protection that leads to the exhaustion of ordinary housing capacity in the host Member State; and, third, as precluding, in the context of a claim for damages, that Member State from invoking force majeure on the grounds of exhaustion of housing capacity due to such an influx.

68.Should the Court find that the case cannot be resolved on the basis of Article 18(9) of Directive 2013/33 and considers it necessary to examine the applicability of force majeure as a stand-alone defence, then I put forth the following points in the alternative.

B.Force majeure as a stand-alone defence

69.On the assumption that force majeure may be relied on as a stand-alone defence against a claim for damages for breach by a Member State of Directive 2013/33, the referring court asks whether that defence is applicable in the circumstances of the present case.

1.The identification of the rule breached by the Member State concerned

70.It should be noted, as a preliminary point, that the referring court has not identified which rule of Directive 2013/33 has been breached by the Member State concerned. Instead, it relies on a breach of ‘EU law obligations’ which are imposed by ‘inviolable Charter rights (here, Article 1), and which are expressed in mandatory, non-derogable terms in [that directive], and which relate to the most basic needs required for a minimum standard of human dignity’.

71.In my view, before applying the second limb of the Brasserie du pêcheur and Factortame test, it is important to identify the rule that has been breached by the Member State concerned.

72.In that respect, it appears from the file submitted to the Court that, when invoked as a means of not complying with Directive 2013/33, force majeure operates as a ‘blanket justification’, since it seeks to justify non-compliance with all the provisions of that directive. However, in the examination of the applicants’ claims, it seems that the rules that were breached by Ireland are laid down in Articles 17 and 18 of Directive 2013/33. While it is for the national court to identify the specific rule that was breached, for the present purposes it is assumed that the rule at issue is contained in those two articles of Directive 2013/33.

2.The second limb of the Brasserie du pêcheur and Factortame test and the assessment of discretion

73.The Minister contends that, as regards the existence of a sufficiently serious breach, the national court should take into account, inter alia, whether the infringement was intentional or involuntary, whether an error of law was excusable or inexcusable, and the attitudes adopted by the EU institutions. It argues, in essence, that the massive influx of Ukrainian refugees after the start of the war in 2022 and the increase in the number of international protection applicants after the COVID-19 pandemic constitute a situation of force majeure such that the breach of the applicants’ rights was involuntary.

74.As explained above, the second limb of the Brasserie du pêcheur and Factortame test is discretion-dependent. (53) In that respect, one should draw a distinction between, on the one hand, a breach of ‘basic needs’ within the meaning of Article 18(9) of Directive 2013/33 and, on the other hand, a breach of the other obligations contained in Articles 17 and 18 of that directive, since the Member States do not enjoy the same degree of discretion when implementing those provisions. Unlike the concept of ‘basic needs’ laid down in the last sentence of Article 18(9) of Directive 2013/33, (54) the other obligations set out in Articles 17 and 18 of Directive 2013/33 allow for discretion in some areas, such as the means of meeting material needs of the applicant for international protection that may go beyond covering their basic needs.

75.Indeed, Article 18(9) of Directive 2013/33, in fine, establishes a non-derogable minimum standard of ‘basic needs’ within the broader framework of Articles 17 and 18 of that directive. It seeks to ensure that the Member States remain bound by an absolute requirement to safeguard applicants’ basic needs, thereby essentially overriding any discretion conferred upon the Member States when they fail to cover the basic needs of applicants for international protection. When dealing with the requirements stemming from the concept of ‘basic needs’, interpreted in the light of Article 1 of the Charter, it is clear that the Member States enjoy no discretion as to whether they may cover those basic needs. Accordingly, a mere failure to satisfy those basic needs is in itself sufficient to constitute a sufficiently serious breach, without the need to consider any additional factors under the second limb of the Brasserie du pêcheur and Factortame test.

76.Such a reading of that test is, moreover, consistent with the Charter, since the concept of ‘basic needs’ is inherently linked to human dignity which, as I have explained above, is an absolute and non-derogable right, forming the foundation of other fundamental rights, and cannot be limited. (55) This means that a mere breach of an obligation imposed by Article 1 of the Charter is always serious. The inviolability within the meaning of Article 1 of the Charter means that this protection may never be waived, even in cases of emergency. (56)

77.Accordingly, in the context of the second limb of the Brasserie du pêcheur and Factortame test, a failure to meet obligations to ensure basic needs violates the human dignity of the person concerned, automatically making it sufficiently serious.

78.In the present case, the issue is whether force majeure can justify non-compliance with the obligation to cover the ‘basic needs’ of applicants for international protection, which is inherently linked to the fundamental right to human dignity. In my view, if the breach affects absolute rights, such as human dignity, it is difficult to invoke force majeure – precisely because such rights are non-derogable.

79.Since Directive 2013/33 implements fundamental rights obligations, it must be interpreted in accordance with Articles 1 and 4 of the Charter which, in accordance with the obligation under Article 52(3) of the Charter, are to be read in the light of the case-law of the European Court of Human Rights (ECtHR) with respect to Article 3 ECHR. That case-law must be taken into account in the determination of whether a Member State has failed to cover the ‘basic needs’, within the meaning of Article 18(9) of that directive, of applicants for international protection.

80.In that regard, it is important to note that, in its judgment of 2 July 2020, N.H. and Others v. France, (57) the ECtHR found that France had violated Article 3 ECHR in circumstances where applicants for asylum had been deprived of basic needs such as shelter and access to sanitation. The ECtHR’s assessment was based on several key criteria, including, first, material conditions of living of the applicants for international protection while awaiting the outcome of their asylum applications; second, the length of time for which the applicants had endured those conditions and the lack of adequate support during that time; (58) third, the existence of the State’s positive obligation; (59) fourth, the applicants’ particular vulnerability as asylum seekers; and fifth, whether the national authorities had taken the necessary steps to ensure that the applicants had access to accommodation or other forms of social assistance. The failure to act in a timely and effective manner contributed to the finding of a violation. (60)

81.In that respect, the ECtHR ruling in N.H. and Others v. France defines the threshold below which material conditions become inhuman or degrading. This means that EU law cannot be interpreted in a way that would enable the Member States to apply lower national standards. Hence, in the interpretation of Directive 2013/33, the requirements of adequate housing, of having sufficient means to maintain a dignified standard of living and of access to healthcare cannot be lower than what is required under Article 1 of the Charter. Otherwise, those lower standards would risk exposing asylum seekers to conditions amounting to inhuman or degrading treatment. In that respect, it should be noted that, in the judgment in Ibrahim and Others, the Court did not define the threshold of severity by reference to the case-law of the ECtHR on Article 3 ECHR, but rather by reference to the threshold adopted in the judgment in Jawo, that is ‘a situation of extreme material poverty’. (61) Furthermore, it appears that the degree of suffering of individuals which is required to trigger the application of Article 1 of the Charter is the main determinant of the breach’s seriousness, rather than State intent or fault.

82.It follows that, if a Member State fails to provide basic accommodation, means of subsistence or healthcare, it infringes Articles 17 and 18 of Directive 2013/33, together with Articles 1 and 4 of the Charter. Therefore, a Member State is precluded from invoking force majeure in order to justify its failure to provide for the basic needs of applicants for international protection. Furthermore, even if one were to accept that a Member State may fail to comply with certain provisions of the directive due to force majeure, it would still have an active duty to protect human dignity. (62)

83.It also follows that, for the purposes of the second limb of the Brasserie du pêcheur and Factortame test – should the Court still examine it – Member States have no discretion to lower the level of protection to below the minimum standards required by Articles 1 and 4 of the Charter, which seek to prevent inhuman or degrading treatment. While Member States retain some discretion as to how they organise and implement reception conditions, they are bound to meet that minimum threshold of fundamental rights protection when implementing Directive 2013/33. If Ireland failed to do so, which it is for the referring court to determine, the argument put forward by the Minister, to the effect that the force majeure defence is justified in the present case, given that the infringement and resulting damage were unintentional or involuntary, and that the error at issue was excusable, cannot be taken into account for the purposes of applying the second limb of the Brasserie du pêcheur and Factortame test.

84.Lastly, the Minister contends that EU-level efforts to establish the Pact on Migration and Asylum, aimed at achieving a fairer distribution of international protection applications, amount to a ‘position taken by a [EU] institution’ under the Brasserie du pêcheur and Factortame test. According to the Minister, that pact reflects the European Union’s recognition that the current legislative framework does not ensure equitable distribution of asylum applications. In that respect, it is important to highlight that that pact does not retroactively replace, modify or suspend the provisions of Directive 2013/33. Until legislative changes are adopted and have entered into force, Member States remain bound by the existing rules and must ensure compliance therewith. It follows that the Minister may not invoke the adoption of the Pact on Migration and Asylum as a means of justifying Ireland’s failure to cover the basic needs of applicants for international protection. Furthermore, although that pact acknowledges shortcomings in the current legislative framework of the Common European Asylum System, it does not mean that it constitutes an admission of legal wrongdoing at EU level. Such an acknowledgment does not equate to taking an institutional position that shields the Member States from liability in respect of breaches of fundamental rights committed in the past.

85.It follows that if a Member State fails to provide basic needs for an applicant for international protection, it infringes Articles 17 and 18 of Directive 2013/33 together with Articles 1 and 4 of the Charter, and is precluded from invoking force majeure in order to justify that failure.

V.Conclusion

86.In the light of all of the foregoing considerations, I propose that the Court of Justice should rule as follows:

Article 18(9) of Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection, read in the light of the right to human dignity and the protection against inhuman or degrading treatment enshrined in Articles 1 and 4 of the Charter of Fundamental Rights of the European Union,

must be interpreted, first, as a specific expression of force majeure, given its clear function as a limited derogation for exceptional circumstances; second, as applying to a situation of a massive influx of persons applying for international protection that leads to the exhaustion of ordinary housing capacity in the host Member State; and, third, as precluding, in the context of a claim for damages, that Member State from invoking force majeure on the grounds of exhaustion of housing capacity due to such an influx.

Directive (EU) 2015/2302 of the European Parliament and of the Council of 25 November 2015 on package travel and linked travel arrangements, amending Regulation (EC) No 2006/2004 and Directive 2011/83/EU of the European Parliament and of the Council and repealing Council Directive 90/314/EEC (OJ 2015 L 326, p. 1).

Ibid., paragraph 54. See also my Opinion in UFC – Que choisir and CLCV (C‑407/21, EU:C:2022:690, point 55).

C‑509/11, EU:C:2013:613 (paragraphs 49 and 50). The Court concluded that a railway undertaking is not entitled to include in its general terms and conditions of carriage a clause under which it is exempt from its obligation to pay compensation in the event of a delay where the delay is attributable to force majeure (paragraph 52).

See, inter alia, judgment of 30 September 2021, Court of Auditors v Pinxten (C‑130/19, EU:C:2021:782, paragraph 781 and the case-law cited). The force majeure doctrine has been applied across different areas of EU law, such as in competition law, customs law, and public procurement.

Judgment of 25 January 2017, Vilkas (C‑640/15, the judgment in Vilkas, EU:C:2017:39, paragraph 54), and the judgment in UFC – Que choisir and CLCV (paragraph 53).

Judgment of 25 January 2024, Commission v Ireland (Trihalomethanes in drinking water) (C‑481/22, EU:C:2024:85). On the temporal limitation, in the context of a preliminary reference, see judgment in UFC – Que choisir and CLCV (paragraphs 67 and 75). See also my Opinion in that case (C‑407/21, EU:C:2022:690, point 80) where it is argued that the national legislation at issue in that case was clearly not framed in such a way as to limit its effects to the period necessary to remedy the difficulties caused by the event capable of constituting force majeure.

Judgment of 8 June 2023, Commission v Slovakia (Right of termination without fees) (C‑540/21, EU:C:2023:450, paragraphs 81 to 88). More generally, it is settled case-law that derogations from Member States’ obligations under EU law must be interpreted strictly (see, to that effect, judgment of 17 December 2020, Commission v Hungary (Reception of applicants for international protection), C‑808/18, EU:C:2020:1029, paragraph 215).

The judgment in Vilkas (paragraph 53).

Ibid. (paragraph 56).

Judgment in UFC – Que choisir and CLCV (paragraph 54). A stricter standard was applied in the judgment of 17 October 2013, Billerud Karlsborg and Billerud Skärblaca (C‑203/12, EU:C:2013:664, paragraph 31), in the context of a directive relating to greenhouse gas emissions, where the Court, relying on the judgment in FerrieraValsabbia and Others v Commission (Joined Cases 154/78, 205/78, 206/78, 226/78 to 228/78, 263/78, 264/78, 31/79, 39/79, 83/79 and 85/79, EU:C:1980:81, paragraph 140), referred to external causes which are inexorable and inevitable to the point of it making objectively impossible for the persons concerned to comply with their obligations.

See judgment of 19 December 2012, Commission v Italy (C‑68/11, EU:C:2012:815, paragraph 64).

Judgment in UFC – Que choisir and CLCV (paragraph 72).

Judgment of 4 July 2000, Haim (C‑424/97, EU:C:2000:357, paragraph 28).

See judgment of 8 June 2023, Commission v Slovakia (Right of termination without fees) (C‑540/21, EU:C:2023:450). That case concerned Slovakia’s adoption of a law, which amended existing legislation to allow travel agencies to offer customers an alteration of their current package travel contracts or a replacement package tour, instead of providing a refund within 14 days as mandated by Article 12 of the Package Travel Directive.

Ibid.; the Court found that the Slovak legislation, which released all package travel organisers from their reimbursement obligation due to the pandemic, did not satisfy the conditions governing reliance on force majeure. The Court noted that such legislation was not confined solely to cases where financial constraints had actually occurred and extended to all contracts affected by the pandemic, without considering the specific financial situation of the organisers.

Recital 1 of Directive 2013/33.

27As 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 that directive, grant to applicants and 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.

28See, by way of analogy, judgments of 8 July 1987, Commission v Belgium (247/85, EU:C:1987:339, paragraph 7); of 7 March 1996, Associazione Italiana per il WWF and Others (C‑118/94, EU:C:1996:86, paragraph 21); and of 11 November 2010, Commission v Italy (C‑164/09, EU:C:2010:672, paragraph 28).

29See, by way of analogy, judgments of 8 June 2006, WWF Italia and Others (C‑60/05, EU:C:2006:378, paragraph 34), and of 23 April 2020, Commission v Finland (Spring hunting of male common eiders) (C‑217/19, EU:C:2020:291, paragraph 66).

30This aligns with 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 (OJ 2001 L 212, p. 12), which explicitly provides for mechanisms for handling mass influxes. If the crisis is extreme, the European Union may trigger that directive, which provides for a collective mechanism for burden-sharing. Article 1 provides that the purpose of that 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. Article 2(a) of that directive provides that the implementation of that protection aims, in particular, to prevent the system used to grant international protection from being inundated by the mass and simultaneous submission of applications for refugee status, in the interests of the persons displaced and other persons requesting international protection.

31Judgment of 17 December 2020, (C‑808/18, EU:C:2020:1029).

32See paragraphs 222 and 223 of that judgment. That conclusion is supported by the numerous references to ‘exceptional circumstances’ that include ‘sudden mass influx of applicants for asylum’ in the Explanatory Memorandum of Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers (OJ 2003 L 31, p. 18): see Proposal for a Council Directive laying down minimum standards on the reception of applicants for asylum in Member States (COM(2001) 181 final) (OJ 2001 C 213E, p. 286). The derogation at issue originates from Article 14(8) of that directive. The hypothesis of exhaustion of housing capacities was developed in the subsequent legislative process and, thus, no reference is made to it in that explanatory memorandum.

33See point 37 above.

34See for example, with regard to the non-contractual liability of the European Union, judgment of 4 April 2017, Ombudsman v Staelen (C‑337/15 P, EU:C:2017:256, paragraph 37). Similarly, regarding Member States, a sufficiently serious breach implies ‘a manifest and grave disregard by the Member State for the limits set on its discretion’. See, for example, judgment of 4 October 2018, Kantarev (C‑571/16, EU:C:2018:807, paragraph 105).

35See Opinion of Advocate General Bobek in Commission v Netherlands (C‑395/17, EU:C:2019:98, point 59).

36See also judgments of 26 January 2010, Transportes Urbanos y Servicios Generales (C‑118/08, EU:C:2010:39, paragraph 30), and of 25 March 2021, Balgarska Narodna Banka (C‑501/18, EU:C:2021:249, paragraph 113). See also Opinion of Advocate General Ćapeta in Dyson and Others v Commission (C‑122/22 P, EU:C:2023:552, point 70).

37See also judgment of 4 December 2003, Evans (C‑63/01, EU:C:2003:650, paragraph 86 and the case-law cited).

38Judgment of 13 March 2007, Test Claimants in the Thin Cap Group Litigation (C‑524/04, EU:C:2007:161, paragraph 119 and the case-law cited).

39Ibid. (paragraph 120).

40See judgments of 23 May 1996, Hedley Lomas (C‑5/94, EU:C:1996:205, paragraph 28), and of 25 January 2007, Robins and Others (C‑278/05, EU:C:2007:56, paragraph 71).

41See judgments of 12 November 2019, Haqbin (C‑233/18, EU:C:2019:956); of 27 February 2014, Saciri and Others (C‑79/13, EU:C:2014:103; ‘the judgment in Saciri’); and of 27 September 2012, Cimade and GISTI (C‑179/11, EU:C:2012:594). For example, in the judgment in Saciri, the Court ruled that Member States must ensure that asylum seekers can also obtain family housing on the private rental market.

42See judgment in Saciri (paragraphs 35 to 40 and 46 to 49).

43Articles 1 and 4 of the Charter have been closely linked in the context of the minimum reception conditions case in the judgment of 19 March 2019, Jawo (C‑163/17, ‘the judgment in Jawo, EU:C:2019:218, paragraph 92). That link was also present in the judgment of 19 March 2019, Ibrahim and Others (C‑297/17, C‑318/17, C‑319/17 and C‑438/17,‘the judgment in Ibrahim and Others’, EU:C:2019:219), and in the judgment of 24 April 2018, MP(Subsidiary protection of a person previously a victim of torture) (C‑353/16, EU:C:2018:276, paragraph 36). The absolute nature of the right enshrined in Article 4 of the Charter, which is closely connected to that of respect for human dignity, has been noted by the Court. See, to that effect, judgments of 5 April 2016, Aranyosi and Căldăraru (C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraph 85), and of 6 September 2016, Petruhhin (C‑182/15, EU:C:2016:630, paragraph 56). On the absolute or non-derogable nature of the right enshrined in Article 1 of the Charter, see Dupré, C., ‘Article 1 – Human dignity’, in Peers, S., Hervey, T., Kenner, J. and Ward, A. (eds), The EU Charter of Fundamental Rights – A Commentary, Hart Publishing, Oxford, 2021, pp. 14 to 15; Jones, J., ‘Human Dignity in the EU Charter of Fundamental Rights and its Interpretation Before the European Court of Justice’, Liverpool Law Review, Vol. 33, 2012, p. 287.

44See judgments of 16 February 2017, C.K. and Others (C‑578/16 PPU, EU:C:2017:127, paragraph 59), and of 24 April 2018, MP(Subsidiary protection of a person previously a victim of torture) (C‑353/16, EU:C:2018:276, paragraph 36). See also Dupré, C., ‘Article 1 – Human dignity’, in Peers, S., Hervey, T., Kenner, J. and Ward, A. (eds), The EU Charter of Fundamental Rights – A Commentary, Hart Publishing, Oxford, 2021, p. 20. While human dignity is not explicitly listed among the rights in the European Convention on Human Rights (ECHR), its fundamental nature suggests that it is non-derogable. While that convention does not explicitly contain a separate article dedicated solely to human dignity, the concept is inherent and underpins many of its provisions, notably Article 3 thereof, which prohibits torture and inhuman or degrading treatment or punishment. Regarding derogation from obligations under the ECHR, Article 15(2) ECHR specifies certain rights, such as the right to life (Article 2) and the prohibition of torture and inhuman or degrading treatment or punishment (Article 3), from which no derogation is permitted, even in times of emergency.

45Judgment of 1 August 2022, Ministero dell’Interno (Withdrawal of material reception conditions) (C‑422/21, EU:C:2022:616, paragraph 39); the judgment in Saciri (paragraph 35); and judgment of 27 September 2012, Cimade and GISTI (C‑179/11, EU:C:2012:594, paragraph 56).

46See also recital 35 of Directive 2013/33.

47The judgment in Saciri (paragraph 48).

48In particular, in the judgment in Saciri (paragraph 42), the Court ruled that allowances had to be sufficient to cover private housing or support via social assistance if the public sector accommodation for asylum seekers was overloaded.

49The judgment in Saciri (paragraph 50).

50Judgment of 12 November 2019, Haqbin (C‑233/18, EU:C:2019:956, paragraph 46), citing the judgment in Jawo (paragraph 92 and the case-law cited).

51See, to that effect, the judgment in Jawo

(paragraph 92), and judgment of 16 July 2020, Addis (C‑517/17, EU:C:2020:579, paragraph 51).

52See, judgment of 12 November 2019, Haqbin (C‑233/18, EU:C:2019:956, paragraph 47). In particular, in paragraphs 47 and 48 of that judgment, the Court explained that a sanction that 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 to ensure a dignified standard of living for the applicant, since it would preclude the applicant from being allowed to meet his or her most basic needs, and would also amount to a failure to comply with the proportionality requirement, in so far as even the most stringent sanctions cannot deprive the applicant of the possibility of meeting his or her most basic needs.

53See point 56 above.

54Article 18(9) of Directive 2013/33, in fine, provides that ‘such different conditions shall in any event cover basic needs’, thus limiting the scope of derogation from the obligation to ensure material reception conditions available under that provision in a case of exceptional circumstances.

55See point 62 above.

56See Dupré, C., ‘Article 1 – Human dignity’, in Peers, S., Hervey, T., Kenner, J. and Ward, A. (eds), The EU Charter of Fundamental Rights – A Commentary, Hart Publishing, Oxford, 2021, p. 20.

57CE:ECHR:2020:0702JUD002882013.

58This included factors such as homelessness, lack of access to basic needs (food, shelter, hygiene), and exposure to harsh weather conditions.

59The ECtHR found that those positive obligations existed by virtue of EU law. See, for instance, § 116 of that judgment.

60Based on those factors, the ECtHR concluded that N.H., K.T. and A.J. had suffered treatment contrary to Article 3 ECHR due to extreme material deprivation and inadequate State assistance. However, for S.G., the ECtHR found no violation. The difference in those cases seemed to reside in the length of the suffering of the applicants.

61See the judgment in Ibrahim and Others (paragraph 90).

62See Dupré, C., ‘Article 1 – Human dignity’, in Peers, S., Hervey, T., Kenner, J. and Ward, A. (eds), The EU Charter of Fundamental Rights – A Commentary, Hart Publishing, Oxford, 2021, p. 19.