Provisional text

delivered on 19 June 2025 (1)

Case C‑184/24 [Sidi Bouzid] (i)

AF, acting on his own behalf and in his capacity as person with parental responsibility for the minor child BF,

Ministero dell’Interno – U.T.G. – Prefettura di Milano

(Request for a preliminary ruling from the Tribunale amministrativo regionale per la Lombardia (Regional Administrative Court, Lombardy, Italy))

( Reference for a preliminary ruling – Directive 2013/33/EU – Reception of applicants for international protection – Withdrawal of material reception conditions – Article 20(1) – Abandonment of place of residence – Article 20(4) and (5) – Serious breach of the rules of the accommodation centres – Repeated and unjustified refusal by the applicant to comply with the transfer decision adopted because of the needs imposed by the management of the capacities of the national reception system – National legislation permitting withdrawal of material reception conditions – Whether permissible )

I.Introduction

1.In a situation in which an applicant for international protection categorically refuses to share or to vacate the accommodation which he occupies with his minor son in a reception centre and repeatedly and without justification refuses to be transferred to another accommodation centre for the purposes of the management of the capacities of the national reception system, is ceasing to provide support a proportionate and appropriate response to that type of conduct?

2.That, in essence, is the question raised by the present case.

3.That question has arisen in proceedings between, on the one hand, AF, a Tunisian national, and BF, his minor son, and, on the other, the Prefettura di Milano (Prefecture of Milan, Italy), which had decided to withdraw from them the material reception conditions relating to housing, food and clothing and to the daily expenses allowance which had been granted to them in accordance with the provisions of Directive 2013/33/EU. (2) Being uncertain about the legality of that decision in the light of the principles established by the Court in the judgments of 12 November 2019, Haqbin , (3) and of 1 August 2022, Ministero dell’Interno (Withdrawal of material reception conditions) , (4) the Tribunale amministrativo regionale per la Lombardia (Regional Administrative Court, Lombardy, Italy) asks the Court, in essence, to clarify the nature and the scope of the measures which a Member State may adopt when faced with that type of conduct.

4.In this Opinion, I shall set out the reasons why I do not support the referring court’s premiss that the unjustified refusal of the applicant for international protection to comply with a decision transferring him to another accommodation centre is conduct that might be treated as equivalent to ‘abandon[ment] of the place of residence determined by the competent authority’ within the meaning of Article 20(1)(a) of Directive 2013/33 that would authorise the Member State to withdraw material reception conditions.

5.Given the silence of the relevant provisions, I propose, rather, that the Court should examine that type of conduct from the aspect of the provisions laid down in Article 20(4) of that directive, in so far as, in categorically objecting to any offer of rehousing, notwithstanding that it is appropriate for his family situation, the applicant for international protection fails to have regard to the right of the competent authority of the Member State to carry out the transfers required by the management of its reception capacities and commits a serious breach of the rules of the accommodation centres, in respect of which that authority may impose sanctions in the form of a different type of measures that respect human dignity and the special needs of the minor.

II.Legal framework

A.European Union law

6.Recitals 25 and 35 of Directive 2013/33 state:

‘(25) The possibility of abuse of the reception system should be restricted by specifying the circumstances in which material reception conditions for applicants may be reduced or withdrawn while at the same time ensuring a dignified standard of living for all applicants.

…

(35) This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. [(5)] In particular, this Directive seeks to ensure full respect for human dignity and to promote the application of Articles 1, 4, 6, 7, 18, 21, 24 and 47 of the Charter and has to be implemented accordingly.’

7.According to Article 1 thereof, that directive aims to lay down standards for the reception of applicants for international protection in Member States.

8.In accordance with Article 2(i) of that directive, an ‘accommodation centre’ is defined as ‘any place used for the collective housing of applicants’. (6)

9.In accordance with Article 3(1), that directive ‘shall apply to all third-country nationals and stateless persons who make an application for international protection on the territory … as long as they are allowed to remain on the territory as applicants, as well as to family members, if they are covered by such application for international protection according to national law’.

10.Article 7 of Directive 2013/33, entitled ‘Residence and freedom of movement, provides, in paragraphs 2 and 3:

‘2. Member States may decide on the residence of the applicant for reasons of public interest, public order or, when necessary, for the swift processing and effective monitoring of his or her application for international protection.

3. Member States may make provision of the material reception conditions subject to actual residence by the applicants in a specific place, to be determined by the Member States. Such a decision, which may be of a general nature, shall be taken individually and established by national law.’

11.Article 18 of that directive, entitled ‘Modalities for material reception conditions’, provides, in paragraph 6, that ‘Member States shall ensure that transfers of applicants from one housing facility to another take place only when necessary’.

12.Article 20 of that directive, entitled ‘Reduction or withdrawal of material reception conditions’, provides:

‘1. Member States may reduce or, in exceptional and duly justified cases, withdraw material reception conditions where an applicant:

(a) abandons the place of residence determined by the competent authority without informing it or, if requested, without permission; or

(b) does not comply with reporting duties or with requests to provide information or to appear for personal interviews concerning the asylum procedure during a reasonable period laid down in national law; or

(c) has lodged a subsequent application as defined in Article 2(q) of Directive [2013/32/EU (7)].

In relation to cases (a) and (b), when the applicant is traced or voluntarily reports to the competent authority, a duly motivated decision, based on the reasons for the disappearance, shall be taken on the reinstallation of the grant of some or all of the material reception conditions withdrawn or reduced.

…

4. Member States may determine sanctions applicable to serious breaches of the rules of the accommodation centres as well as to seriously violent behaviour.

6. Member States shall ensure that material reception conditions are not withdrawn or reduced before a decision is taken in accordance with paragraph 5.’

B.Italian law

13.Article 23 of decreto legislativo n. 142 – Attuazione della direttiva 2013/33/UE recante norme relative all’accoglienza dei richiedenti protezione internazionale, nonchè della direttiva 2013/32/UE, recante procedure comuni ai fini del riconoscimento e della revoca dello status di protezione internazionale (Legislative Decree no 142 implementing Directive [2013/33] and Directive [2013/32]) (8) of 18 August 2015, entitled ‘Reduction or withdrawal of material reception conditions’, provides:

‘1. The Prefect of the province in which the structures referred to in Articles 9 and 11 are situated shall adopt a reasoned order withdrawing reception measures where:

(a) the applicant does not report to the designated accommodation centre or abandons the reception centre without first informing, stating his or her reasons, the competent Prefettura – ufficio territoriale del Governo [Prefecture – District Government Office, Italy];

…

(a) temporary exclusion from participation in the activities organised by the manager of the centre;

(b) temporary exclusion from one or more of the services referred to in the second sentence of Article 10(1), apart from the equipment;

(c) suspension, for a period of not less than 30 days and not more than six months, or withdrawal of the ancillary economic benefits provided for in the schedule referred to in Article 12;

2 bis.The measures referred to in this Article shall be adopted on an individual basis, in compliance with the principle of proportionality and taking account of the applicant’s situation, in particular in the light of the conditions set out in Article 17, and shall state the reasons on which they are based. The measures adopted by the Prefect against the applicant shall be communicated to the competent district committee responsible for examining the application for international protection.

3.In the case provided for in paragraph 1(a), the manager of the centre shall be required to inform the Prefecture – District Government Office immediately that the applicant has failed to report to or has abandoned the structure. If the applicant for asylum is found or voluntarily surrenders to the law-enforcement forces or attends the centre to which he or she was assigned, the Prefect responsible for the area shall order, by reasoned decree, reinstallation of the reception measures on the basis of the information provided by the applicant. Reinstatement shall be ordered only if the failure to report or the abandonment are attributable to force majeure, unforeseeable circumstances or other serious personal reasons.

4.In the event of a breach of the rules of the centre, the manager of the centre shall issue a formal warning to the applicant and, where the conditions of the application of the measures referred to in paragraph 2 are met, shall immediately communicate a report of the facts to the Prefecture.

…’

III.The facts of the dispute in the main proceedings and the question referred for a preliminary ruling

14.AF and his son BF, both Tunisian nationals, are applicants for international protection. BF was a minor on the date on which his application was submitted. They are accommodated, in that capacity, in a reception centre in Milan (Italy).

15.On 1 June 2023, the Prefecture of Milan adopted a decision withdrawing the material reception conditions granted to AF and BF. (9) The statement of reasons for that decision, which is annexed to the national file made available to the Court, refers to two circumstances.

16.The first circumstance concerns AF’s repeated refusals to vacate the accommodation which he occupies with his son, which is intended not for two people but for four people, and to be transferred to another reception in Milan. The second circumstance concerns his conduct in the centre in which he is housed. That conduct was alleged to have constituted a serious breach of the rules of the centre and to have been of such a kind as to threaten safety within the centre and to obstruct the management of the procedures linked with the reception of applicants for international protection, having regard to the huge migratory flow and to the ongoing need to allocate reception capacities.

17.Notwithstanding the diversity of those circumstances and the fact that they consist in breaches of the rules of the reception centre, seriously violent conduct, or acts having an impact on the conditions for admission to reception conditions, the referring court observes that the decision of the Prefecture of Milan is based on Article 23(1)(a) of Legislative Decree No 142/2015, which is intended to implement Article 20(1)(a) of Directive 2013/33. It infers that the basis for withdrawal of material reception conditions consists of AF’s repeated refusals to be transferred to another reception centre in Milan for reasons of organisational necessity.

18.AF brought an action for annulment of the decision of the Prefecture of Milan and made an interlocutory application, seeking interim measures, before the referring court. He justified his refusal to be transferred to another reception centre by the fact that BF was pursuing his studies close to the centre in which they are housed. He claims that, owing to the withdrawal of material reception conditions with respect to him, he will not be in a position to provide for his basic needs or for those of his minor son. In support of his application, he alleges, in particular, infringement of Article 21 of Directive 2013/33 and of Article 17 of Legislative Decree No 142/2015, in that the measure does not take account of the fact that he and his son belong to the category of ‘vulnerable persons’; infringement of Article 23(1)(a) of Legislative Decree No 142/2015, in that the refusal to submit to the transfer cannot be treated as equivalent to the cases envisaged by that provision; and infringement of Article 20 of Directive 2013/33 as interpreted by the Court in its judgments in Haqbin and Ministero dell’Interno (Withdrawal of material reception conditions), which has given rise to a general principle, applicable to all cases of withdrawal of material reception conditions, including where that withdrawal is not in the nature of a sanction.

19.By order of 25 July 2023, the referring court dismissed AF’s application for interim measures, on the ground that the decision of the Prefecture of Milan was an expression of the organisational power of the administration with regard to the management of reception centres.

20.AF lodged an appeal against that order before the Consiglio di Stato (Council of State, Italy), which, by order of 22 September 2023, allowed the appeal on the ground that the decision of the Prefecture of Milan could constitute a breach of AF’s fundamental rights, such as access to food, housing and clothing, which are basic needs.

21.The referring court wonders, in particular, whether the fundamental principle of protection of human dignity may have the effect that the principles stated by the Court are rules of general application and, as such, are applicable beyond the cases of withdrawal as a sanction to which those judgments refer. It takes the view that, in the present case, the administration gave sufficient reasons for the withdrawal of essential material reception conditions, given AF’s unwarranted and disproportionate refusal to be transferred to another reception centre, and that alternative, less restrictive solutions are not possible in practice.

22.The referring court emphasises, moreover, that the withdrawal is a direct consequence of AF’s refusal to continue to benefit from those material reception conditions, albeit in another place, which is tantamount to voluntary withdrawal from the reception mechanism. AF is therefore exposed, by his own choice, to deprivation of the possibility of providing for his basic needs.

23.The referring court observes, last, that that refusal constitutes abusive conduct in that it instrumentalises the reception measure for its own purposes and in practice hinders the administration’s power of organisation and management to designate the reception centre to which the applicant for international protection is assigned. In the face of that abuse, the only measure which the administration could order is withdrawal of the material reception conditions. The referring court adds that, if it had to be considered that, in the situation at issue, Article 20 of Directive 2013/33 excludes the exercise of the power to withdraw material reception conditions, the administration would no longer be in a position to assume in practice the management of the reception measures, since the mere refusal by an applicant to be transferred could ‘paralyse the organisation of those measures’ and introduce a ‘right to stay’ at the first reception centre, depending solely on the wishes of the applicant, which has no basis in either EU law or national law.

24.In those circumstances, the Tribunale amministrativo regionale per la Lombardia (Regional Administrative Court, Lombardy) decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:

‘Do Article of Directive [2013/33] and the principles set out by the Court of Justice in its judgments [in Haqbin ] and [in Ministero dell’Interno (Withdrawal of material reception conditions)]

– in so far as they preclude the administrative authority of the Member State from ordering, as a sanction, the withdrawal of reception measures where that decision would be detrimental to the basic vital needs of the foreign national applying for international protection and of his or her family – preclude national legislation which permits, following a reasoned individual assessment, relating also to the necessity and proportionality of the measure, withdrawal of reception, not for sanctioning reasons, but because the conditions for being granted it are no longer met, in particular, on account of the foreign national’s refusal, on grounds which do not relate to covering basic vital needs and protecting human dignity, to agree to the transfer to another accommodation centre, designated by the administrative authority on account of objective organisational needs and guaranteeing, under the responsibility of the administrative authority itself, that the material reception conditions equivalent to those enjoyed at the centre of origin will be maintained, where the refusal to transfer and the subsequent decision ordering the withdrawal place the foreign national in the position of being unable to meet basic needs of personal and family life?’

AF, the Italian, Belgian, Cypriot and Polish Governments and the European Commission submitted written observations.

IV.Analysis

By its question for a preliminary ruling, the referring court asks the Court, in essence, whether Article 20 of Directive 2013/33, as interpreted in the judgments in Haqbin and in Ministero dell’Interno (Withdrawal of material reception conditions), must be interpreted as precluding national legislation under which a Member State may, after assessing the necessity and proportionality of the measure in the context of an individualised evaluation of the situation, withdraw material reception conditions from an applicant for international protection who, because of his repeated refusals to be transferred to another accommodation centre, notwithstanding that it is appropriate for his family situation, ceases to satisfy the conditions for the grant of material reception conditions.

That question arises in so far as no provision of Directive 2013/33 expressly governs a situation of that type, in which an applicant for international protection does not comply with the modalities of his or her support and wrongfully remains in a reception centre, refusing repeatedly and without justification to be transferred to another reception centre.

As is apparent from its order for reference, the Tribunale amministrativo regionale per la Lombardia (Regional Administrative Court, Lombardy) proceeds on the assumption that conduct such as that at issue may and must be treated as ‘abandon[ment] of the place of residence determined by the competent authority’, within the meaning of Article 20(1)(a) of Directive 2013/33, and could thus, in accordance with that provision, give rise to the withdrawal of material reception conditions. The referring court considers that such conduct amounts to voluntary withdrawal by the applicant for international protection from the national reception mechanism in so far as it is equivalent to failure by that applicant to report to the reception centre assigned to him or her, which is treated as equivalent to abandonment of the place of residence determined by the competent national authority.

Although I share the concerns expressed both by the referring court and by the Cypriot and Polish Governments that that type of conduct displays an abusive character against which the competent authorities of the Member State must be able to take action, I consider, however, that, in the light of the wording of Article 20(1)(a) of Directive 2013/33 and of the context and the purpose of the regulations of which that article forms part, those two types of conduct cannot be treated as mutually equivalent.

A.The refusal to comply with a decision ordering transfer from one accommodation centre to another accommodation centre does not come under Article 20(1)(a) of Directive 2013/33

As its title indicates, Article 20 of Directive 2013/33 governs measures that reduce or withdraw material reception conditions.

In paragraph 1(a), that article thus allows Member States to reduce or, ‘in exceptional and duly justified cases, withdraw [those] conditions where an applicant … abandons the place of residence determined by the competent authority without informing it or, if requested, without permission’.

I would observe at the outset that the wording of that provision must be interpreted restrictively, as shown by the expression ‘in exceptional and duly justified cases’ employed by the EU legislature. Other than in the case of a person who has concealed his or her financial resources, the withdrawal of material reception conditions has the effect of depriving an applicant for international protection who is wholly dependent on State assistance of housing, food, clothing and a daily expense allowance. (10)

I would emphasise, moreover, that the purpose of that provision is to clarify the implications of the general rule stated by the EU legislature in Article 7(3) of Directive 2013/33. That article, which relates to the residence and freedom of movement of the applicant in the host Member State, allows that Member State to make provision of the material reception conditions conditional on ‘actual’ residence in a specific place that the competent national authority has determined. Article 20(1)(a) of that directive determines the measure that may be applied to an applicant who does not comply with that condition by abandoning that place of residence ‘without informing [the competent authority]’ or, if requested, without permission.

The verb ‘abandon’, which is translated uniformly in all the language versions of that provision, has a strong meaning since it implies, in its usual sense, permanently giving up on or leaving a thing, a person or a place. (11) In national law, the concept of ‘abandonment of housing’ may have its own meaning. In French law, for example, it is characterised by the abrupt and unforeseeable departure of a person from the housing which he or she occupies and by his or her unjustified and prolonged, or indeed definitive, absence from that housing. (12) Thus, as evidenced by the wording of the second subparagraph of Article 20(1) of Directive 2013/33, the EU legislature also refers to the situation of an applicant who can no longer be traced, (13) since it requires Member States to take a decision on the reinstallation of the material reception conditions where the applicant ‘is traced’ or voluntarily reports to the competent authority, taking into account the reasons for his or her ‘disappearance’.

In the light of those factors, I think that conduct such as that at issue, which is characterised by the refusal of the applicant for international protection to comply with a transfer decision and by his wrongfully remaining in the first accommodation centre to which he was assigned, cannot be treated as equivalent to that of an applicant who abandons the place of residence determined by the competent authority without informing that authority or obtaining prior permission. I can understand the referring court’s argument that, by refusing to adhere to the modalities of his or her support and to report to the other accommodation centre, the applicant removes himself or herself from the national reception system in the same way as a person who abandons his or her accommodation centre. However, it must be pointed out that, in a situation such as that at issue, the applicant – wrongfully, it must be admitted – maintains his or her actual residence in the first accommodation centre to which he or she was assigned, but has not disappeared and is perfectly capable of being traced for the purposes of the examination of his or her application for international protection, and the competent national authority is fully informed of that place of residence.

To my mind, the wording of Article 20(1)(a) of Directive 2013/33 therefore precludes a situation such as that at issue from being treated as equivalent to a situation in which an applicant abandons the accommodation centre determined by the competent national authority.

The context and the purpose of Article 20(1) of Directive 2013/33 also argue in that sense.

Withdrawal of the material reception conditions is a measure which the EU legislature prescribes in very strict terms, ‘in exceptional and duly justified cases’, in the first subparagraph of Article 20(1) of that directive, in two situations which are associated, in particular, with a risk of abuse of the reception system. (14)

The first situation is where the Member State may, in accordance with the second subparagraph of Article 28(1) of Directive 2013/32, assume that the applicant for international protection has implicitly withdrawn or abandoned his or her application for international protection because he or she has abandoned the place of residence to which he or she is assigned (Article 20(1)(a) of Directive 2013/33) or fails to report to the authorities, fails to respond to requests for information or does not appear for personal interviews relating to the procedure for the examination of his or her application (Article 20(1)(b) of that directive). Those circumstances, which appear as so many conditions of admission to material reception conditions, are among the obligations imposed on applicants, set out in Article 4 of Directive 2011/95/EU (15) and Article 13 of Directive 2013/32. In such a situation, where the Member State may presume that the application has been withdrawn, it may then presume, until the applicant reappears (second subparagraph of Article 20(1) of Directive 2013/33), that the right to material reception conditions, which is associated with the status of applicant, has ceased to exist.

The second situation is where the applicant submits a ‘subsequent application’, within the meaning of Article 2(q) of Directive 2013/32 (Article 20(1)(c) of Directive 2013/33), that is to say, a further application for international protection made after a final decision has been taken on a previous application. In that situation, withdrawal may therefore be justified if it appears that the applicant has made that further application with the sole aim of receiving material reception conditions in the Member State.

However, conduct such as that at issue is not among the instances of non-compliance that are capable of demonstrating a breach of the obligations imposed on the applicant in connection with the examination of his or her application for international protection and the refusal to comply with the modalities of his or her support cannot in my view demonstrate in itself the implicit withdrawal of his or her application or an attempt to circumvent the national reception system.

In so far as the applicant is present on the territory of the Member State to which he made his application, is actually resident in the place of residence initially determined by the Member State in order to ensure the swift and effective processing of his application, and meets his obligation to cooperate under Article 4(2) of Directive 2011/95 and all the obligations laid down in Article 13 of Directive 2013/32, he meets the conditions for admission to material reception conditions as long as he is allowed to remain on the national territory in that capacity. (16) In such a situation, it would therefore be contrary to the logic of the system established by Article 20(1) of Directive 2013/33 to deprive the applicant of the advantages associated with the examination of his application for international protection.

Consequently, I do not think that a Member State may rely on the provisions set out in Article 20(1)(a) of Directive 2013/33 to adopt a measure withdrawing material reception conditions from an applicant for international protection who wrongfully remains in the first accommodation centre to which he was assigned and who repeatedly and without justification refuses to be transferred to another accommodation centre for organisational needs.

I consider, on the other hand, that such conduct may characterise a ‘serious breach of the rules of the accommodation centres’, within the meaning of Article 20(4) of Directive 2013/33, in respect of which a Member State may determine sanctions in compliance with the requirements set out in Article 20(5) and (6) of that directive.

B.The refusal to comply with a decision ordering transfer to another accommodation centre comes under Article 20(4) of Directive 2013/33

Article 20(4) of Directive 2013/33 provides that ‘Member States may determine sanctions applicable to serious breaches of the rules of the accommodation centres as well as to seriously violent behaviour’.

Admittedly, that article does not specify the obligations among the rules of the accommodation centres breach of which may lead to the imposition of sanctions, and it is therefore for each Member State to define them. However, such rules necessarily mention or refer to the general and individual obligations placed on each of the parties during their stay in the centre. They also necessarily specify the modalities of the organisation of the accommodation centre and the conditions of the support provided to the applicant for international protection. Like the conditions for entering, remaining in and leaving the places of accommodation for that applicant, the conditions of transfer seem to me to be essential elements of the rules of the accommodation centre, to which the applicant subscribes by signing the reception agreement generally associated with those rules. (17)

It thus follows from a reading of the general provisions relating to the applicant’s stay on the territory of the host Member State, taken together, that Directive 2013/33 does not recognise a right for an applicant to remain in a specific accommodation centre.

In the first place, it follows from Article 7(2) of Directive 2013/33 that Member States may decide on the residence of the applicant, whether for reasons of public interest, public order or for the swift processing and effective monitoring of his or her application for international protection. Although the concept of ‘reason of public interest’ is not defined in that directive, it indisputably encompasses reasons relating to the organisation and management of the capacities of the national reception system, while the EU legislature recognises, moreover, in recital 26 of that directive, the need to ensure the ‘efficiency of national reception systems’.

In the second place, it follows from Article 18(6) of Directive 2013/33 that the host Member State is entitled to transfer the applicant from one housing facility to another if that transfer seems ‘necessary’, provided, however, that the accommodation arrangements meet the particular needs of families and vulnerable or dependent persons. (18) Thus, the competent national authority is entitled to require the transfer of an applicant to another accommodation centre where the capacity of the reception structures so requires or where the appropriateness of those structures for the particular needs of the applicant so requires, owing, for example, to his or her personal or family situation (family, single women or men, single-parent family, unaccompanied minors), or when the applicant encounters difficulties in adapting to the rules of conduct of the accommodation centre in question. Each of those circumstances is obviously liable to change during the reception procedure of the applicant.

Those provisions would in my view be rendered meaningless if the Member States were deprived of any means of action vis-à-vis an applicant who, occupying accommodation that meets the needs of a larger family unit, refuses to cohabit in that accommodation or to vacate it and, moreover, categorically and without good reason objects to any offer of rehousing appropriate for his or her family situation. (19) By wrongfully remaining in that accommodation, the applicant deprives the manager of the accommodation centre of the possibility of offering the vacant places to other isolated persons or other families in need. If that conduct is tolerated it is likely to lead in practice to the paralysis of the reception system by preventing Member States from managing their housing facilities efficiently, with the flexibility demanded by the diversity of the situations encountered and changes in migratory flows.

For all of those reasons, I think that such conduct must be capable of being characterised as a ‘serious breach of the rules of the accommodation centres’, within the meaning of Article 20(4) of Directive 2013/33.

Such a solution allows Member States to impose sanctions for that type of conduct while requiring that they respect the guarantees expressly provided for by the EU legislature in Article 20(5) and (6) of that directive, in particular those relating to respect for the principle of proportionality and human dignity.

In application of Article 20(5) of that directive, any sanction, within the meaning of paragraph 4 of that article, must be objective, impartial, reasoned and proportionate to the particular situation of the applicant and to all the factors of the case and must, under all circumstances, ensure access to health care and ensure a dignified standard of living for the applicant. (20)

Although, as the Court acknowledges in the judgment in Haqbin, the system of sanctions may, in principle, relate to material reception conditions, it nonetheless immediately qualified that consideration in the light of those requirements and precluded the possibility of even the temporary withdrawal of all of those conditions. (21)

In the first place, the Court held that a sanction consisting, on the sole basis of Article 20(4) of Directive 2013/33, in the withdrawal, even if only on a temporary basis, 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 him or her from being allowed to meet his or her most basic needs, such as a place to live, food, clothing and personal hygiene, and thus undermine his or her physical or mental health or put him or her in a state of degradation incompatible with human dignity. (22) In that sense, the Court added that such a sanction would amount to a failure to comply with the proportionality requirement. (23)

In the second place, the Court held that the requirement to ensure a dignified standard of living for the applicant requires that not only the Member States, but also the private natural or legal persons to whom they have recourse, guarantee such a standard of living continuously and without interruption. (24) The support provided for the applicant must therefore be continuous and respect his or her dignity, which in my view also follows from Article 20(6) of Directive 2013/33. That article, which is primarily a provision of a procedural nature, requires that the host Member State continue to ensure, until the adoption of a decision reducing or withdrawing material reception conditions, that the applicant’s basic needs are supported in such a way that there is no break in that support.

That support pursues a threefold objective. First of all, it makes it possible to ensure the effective protection of the applicant on the territory of the host Member State, thus helping to reduce the risk of marginalisation to which he or she is exposed and the temptation of ‘secondary movements’. Next, that support puts the applicant in a position to exercise the right to asylum by allowing him or her to participate in the procedure for the examination of the application in accordance with the rights recognised to the applicant and the obligations placed on him or her under Directives 2011/95 and 2013/32. Last, that support must allow the host Member State to examine the application for international protection diligently, since, in spite of the sanction adopted, the host Member State must remain in a position to locate the applicant in order to notify him or her of the various appointments and meetings.

In the third and last place, the Court has pointed out that, in application of Article 23(1) of Directive 2013/33, Member States must make the best interests of the child a primary consideration when implementing the provisions of that directive that involve minors and when adopting sanctions, in accordance with Article 24 of the Charter, to which recital 35 of that directive makes reference. When adopting a sanction, the Member State is thus required to take into account factors such as the minor’s well-being and social development, taking into particular consideration the minor’s background and safety and security considerations. (25) Clearly, the withdrawal of all material reception conditions, even on a temporary basis, is not a measure appropriate to the situation of a minor, since it does not permit his or her specific needs to be met and manifestly compromises the conditions of his or her education and development.

In the present case, I understand, on reading the decision of the Prefecture of Milan, that that measure was the consequence of an accumulation of problems and appeared to be the final means of achieving progress in the situation, in spite of the various attempts already made by the competent national authorities.

In fact, it is apparent from that decision that, in addition to the particularly violent conduct which the applicant adopted within his accommodation centre, he twice objected to the vacant beds in his accommodation being occupied by two other applicants for international protection and refused on five occasions to comply with the rehousing measures determined for him, which were nonetheless appropriate for his situation and that of his son, who was a minor at the time of the facts of the dispute in the main proceedings. In addition, it is apparent from that decision that, although the competent national authority initiated the procedure for the withdrawal of material reception conditions following the applicant’s first two refusals to be transferred, it abandoned that procedure and agreed that the applicant and his son could pursue their reception programme in the centre in which they are housed.

For all the reasons which I have just set out, a Member State cannot foresee, among the sanctions that may be imposed on an applicant who refuses to comply with a transfer decision which is nonetheless appropriate for his or her family situation, a sanction consisting in the withdrawal of all material reception conditions, within the meaning of Article 2(f) and (g) of Directive 2013/33, since it would have the effect of depriving that applicant of the possibility of meeting his or her most basic needs, namely housing, food, clothing and hygiene. Therefore, that Member State must determine a sanction, of a different nature, that respects the requirements set out in Article 20(5) and (6) of that directive, as interpreted by the Court. That means, in particular, that that sanction must be proportionate to the applicant’s particular situation and respect his or her human dignity and must enable him or her to have access to health care. In a situation such as the one at issue, which concerns a single parent family, that sanction must be adopted with particular regard to the best interests of the child, in accordance with Article 23 of that directive, and, in particular, the needs of the child to be met.

V.Conclusion

Having regard to all of the foregoing considerations, I propose that the Court should answer the question for a preliminary ruling referred by the Tribunale amministrativo regionale per la Lombardia (Regional Administrative Court, Lombardy, Italy) as follows:

(1)Article 20(1)(a) 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

must be interpreted as meaning that the conduct of an applicant for international protection who wrongfully remains in the first accommodation centre to which he or she was assigned and who repeatedly and without justification refuses to be transferred to another accommodation centre for the purposes of the management of the capacities of the national reception system cannot be treated as equivalent to ‘abandon[ment] of the place of residence determined by the competent authority’, in which case all material reception conditions may be withdrawn.

(2)Article 20(4) to (6) of Directive 2013/33

must be interpreted as meaning that the conduct of an applicant for international protection who wrongfully remains in the first accommodation centre to which he or she was assigned and who repeatedly and without justification refuses to be transferred to another accommodation centre for the purposes of the management of the capacities of the national reception system constitutes a ‘serious breach of the rules of the accommodation centres’ in respect of which the Member State may impose a sanction by adopting a sanction of a different nature than withdrawal of all material reception conditions.

It is for the Member State to determine a sanction that is proportionate to the particular situation of that applicant and to all the factors of the case and which guarantees, in all circumstances, respect for his or her human dignity and his or her access to health care. In addition, in the particular case where a family is concerned, that sanction must be adopted with particular regard to the best interests of the child, in accordance with the provisions laid down in Article 23 of that directive, and, in particular, the needs of the child to be met.

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Original language: French.

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The name of the present case is a fictional name and does not correspond to the real name of any party to the proceedings.

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Directive of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (OJ 2013 L 180, p. 96).

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3

C‑233/18, ‘the judgment in Haqbin’, EU:C:2019:956.

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4

C‑422/21, ‘the judgment in Ministero dell’Interno (Withdrawal of material reception conditions)’, EU:C:2022:616.

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‘The Charter’.

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6

The concept of ‘accommodation centre’ employed, for example, in the English language and the French language (‘centre d’hébergement’) versions of Directive 2013/33 is translated by the concept of ‘reception centre’ in other language versions, such as the Italian language (‘centro di accoglienza’) and Spanish language (‘centro de acogida’) versions.

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7

Directive of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (OJ 2013 L 180, p. 60).

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8

GURI No 214, 15 September 2015, p. 1. This legislative decree was amended by decreto-legge n. 20 – Disposizioni urgenti in materia di flussi di ingresso legale dei lavoratori stranieri e di prevenzione e contrasto all’immigrazione irregolare (Legislative Decree No 20 establishing urgent provisions on the flow of legal entry of foreign workers and to prevent and combat unlawful immigration) (GURI No 59, 10 March 2023, p. 1). This legislative decree was converted into a law, with amendments, by legge n 50 (Law No 50) of 5 May 2023 (GURI No 104, 5 May 2023, p. 7) Legislative Decree No 142/2015’.

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‘The decision of the Prefecture of Milan’.

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10

See Article 2(g) of Directive 2013/33.

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11

See the Larousse Dictionary and the Dictionary of the Académie française.

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12

See the judgment of the Court of Cassation (France), Third Civil Chamber, of 8 July 2009 (no 08-16.992).

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13

I note that Article 13 of Legislative Decree No 142/2015 expressly provides for the withdrawal of material reception conditions, in accordance with Article 23(1)(a) of that legislative decree, in the event of ‘unjustified absence from the centres’.

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14

See, in that regard, recital, 25 of Directive 2013/33 and the judgment in Haqbin (paragraph 44).

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15

Directive of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (OJ 2011 L 337, p. 9).

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16

See, in that regard, Article 3(1) of Directive 2013/33.

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17

See, for example, in France, decree of 19 June 2019 on the rules on the functioning of reception centres for asylum seekers (JORF, 28 June 2019, p. 111) which provides, in Article 2 of the annex thereto, that ‘at any time, the manager of the reception centre for asylum seekers may ask the French Office for Immigration and Integration to arrange for the transfer of a person being accommodated to another place of accommodation where his or her situation of vulnerability requires support appropriate to his or her needs or where problems in adapting to the rules of conduct of the place of accommodation have been detected.

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18

See recitals 9, 14 and 22 and also Article 18(2)(a) and Articles 21 to 25 of that directive.

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I would nevertheless point out that, in accordance with the provisions provided for in Article 18(2)(a) and Article 23 of Directive 2013/33, the manager of the accommodation centre must, when he or she organises cohabitation inherent in collective housing, preserve the privacy of the family particularly taking into account the specific needs of the children.

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See the judgment in Haqbin (paragraphs 45 and 51).

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21

See the judgment in Haqbin (paragraphs 43, 44 and 52).

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22

See the judgment in Haqbin (paragraphs 46 and 47 and the case-law cited).

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23

See the judgment in Haqbin (point 48).

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24

See the judgment in Haqbin (paragraph 50).

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See the judgment in Haqbin (paragraphs 53 to 55).