18.1.2021

EN

Official Journal of the European Union

C 19/19

(Case C-519/20)

(2021/C 19/25)

Language of the case: German

Referring court

Parties to the main proceedings

Appellant: K

Party to the proceedings: Landkreis Gifhorn

Questions referred

1.Must EU law, in particular Article 18(1) and (3) of Directive 2008/115/EC (1), be interpreted as meaning that a national court deciding on detention for the purpose of removal must, in each individual case, examine the conditions laid down in that provision, in particular whether the exceptional situation persists, where the national legislature, on the basis of Article 18(1), has derogated from the conditions laid down in Article 16(1) in national law?

2.Must EU law, in particular Article 16(1) of Directive 2008/115/EC, be interpreted as precluding national legislation which on a temporary basis, until 1 July 2022, allows the placement of detainees awaiting removal in a prison facility despite specialised detention facilities being provided in the Member State and despite the fact that there is no emergency situation within the meaning of Article 18(1) of Directive 2008/115/EC which would make that absolutely necessary?

3.Must Article 16(1) of Directive 2008/115/EC be interpreted as meaning that a ‘specialised detention facility’ to detain persons awaiting removal is not deemed to exist merely because:

— the ‘specialised detention facility’ indirectly is subject to supervision by the same government body as detention facilities for prisoners, namely the Minister for Justice,

— the ‘specialised detention facility’ is organised as a division of a prison and, while it has its own governor, is under the overall management of the prison facility as it is one of a number of divisions of that prison?

4.If Question 3 is answered in the negative:

Must Article 16(1) of Directive 2008/115/EC be interpreted as meaning that accommodation in a ‘specialised detention facility’ for detainees awaiting removal exists if a prison facility sets up a specific division as a detention facility, if that division operates for detainees awaiting removal a specific area with three buildings within the perimeter fence and one of those three buildings temporarily solely houses prisoners serving custodial sentences for default of payment of a fine or short custodial sentences, where the prison facility takes care to ensure detainees awaiting removal are separated from prisoners and where, in particular, every house has its own facilities (its own clothing store, medical facilities, gym) and, while the yard/outside space is visible from all houses, each house has its own area for use by the detainees which is fenced off with a wire-mesh fence that prevents direct access between houses?

(1) Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ 2008 L 348, p. 98).