Opinion of Advocate General Medina delivered on 12 December 2024.

• Jurisdiction: European Union
• Celex Number: 62023CC0662
• ECLI: ECLI:EU:C:2024:1028
• Date: 12 December 2024
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

MEDINA

delivered on 12 December 2024 (1)

Case C‑662/23 [Zimir] (i)

Staatssecretaris van Justitie en Veiligheid

v

X

(Request for a preliminary ruling from the Raad van State (Council of State, Netherlands))

( Reference for a preliminary ruling – Border controls, asylum and immigration – Asylum policy – Directive 2013/32/EU – Point (b) of the third subparagraph of Article 31(3) – Procedures for granting international protection – Use by the national authority of its power to extend the examination period of six months by a period not exceeding a further nine months – A large number of third-country nationals simultaneously applying for international protection – Making it very difficult in practice to conclude the procedure within the six-month time limit – Taking into account other circumstances )

1. The present request for a preliminary ruling concerns the difficulties encountered by Member States when they are faced with a large number of third-country nationals or stateless persons simultaneously applying for international protection. In particular, the Court is asked to rule on the interpretation of point (b) of the third subparagraph of Article 31(3) of the Procedures Directive, (2) under which Member States may extend the time limit of six months set out in the first subparagraph of Article 31(3) of that directive for the examination of applications for international protection. That extension is permitted when a large number of third-country nationals simultaneously apply for international protection, making it very difficult in practice to conclude the procedure within that six-month time limit.

2. The reference was made in proceedings between the Staatssecretaris van Justitie en Veiligheid (State Secretary for Justice and Security, Netherlands; ‘the State Secretary’) and X, a third-country national, concerning the failure by that authority to take a decision on the application for a temporary asylum residence permit within the six-month period.

3. The referring court wishes to know how the wording ‘a large number of third-country nationals or stateless persons simultaneously apply for international protection’ within the meaning of point (b) of the third subparagraph of Article 31(3) of the Procedures Directive is to be interpreted, how it relates to the wording ‘making it very difficult in practice to conclude the procedure within the six-month time limit’ also contained therein, and whether any other circumstances may be taken into account in its assessment.

I. Legal framework

A. European Union law

4. Recital 18 of the Procedures Directive states:

‘It is in the interests of both Member States and applicants for international protection that a decision is made as soon as possible on applications for international protection, without prejudice to an adequate and complete examination being carried out.’

5. Article 4 of the Procedures Directive, headed ‘Responsible authorities’, provides in paragraph 1:

‘Member States shall designate for all procedures a determining authority which will be responsible for an appropriate examination of applications in accordance with this Directive. Member States shall ensure that such authority is provided with appropriate means, including sufficient competent personnel, to carry out its tasks in accordance with this Directive.’

6. Article 31 of that directive, headed ‘Examination procedure’, provides as follows in paragraphs 1 to 5:

‘1. Member States shall process applications for international protection in an examination procedure in accordance with the basic principles and guarantees of Chapter II.

2. Member States shall ensure that the examination procedure is concluded as soon as possible, without prejudice to an adequate and complete examination.

3. Member States shall ensure that the examination procedure is concluded within six months of the lodging of the application.

Where an application is subject to the procedure laid down in Regulation (EU) No 604/2013 [of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (OJ 2013 L 180, p. 31)], the time limit of six months shall start to run from the moment the Member State responsible for its examination is determined in accordance with that Regulation, the applicant is on the territory of that Member State and has been taken in charge by the competent authority.

Member States may extend the time limit of six months set out in this paragraph for a period not exceeding a further nine months, where:

(a) complex issues of fact and/or law are involved;

(b) a large number of third-country nationals or stateless persons simultaneously apply for international protection, making it very difficult in practice to conclude the procedure within the six-month time limit;

(c) where the delay can clearly be attributed to the failure of the applicant to comply with his or her obligations under Article 13.

By way of exception, Member States may, in duly justified circumstances, exceed the time limits laid down in this paragraph by a maximum of three months where necessary in order to ensure an adequate and complete examination of the application for international protection.

4. Without prejudice to Articles 13 and 18 of Directive 2011/95/EU [of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (OJ 2011 L 337, p. 9)], Member States may postpone concluding the examination procedure where the determining authority cannot reasonably be expected to decide within the time limits laid down in paragraph 3 due to an uncertain situation in the country of origin which is expected to be temporary. …

…

5. In any event, Member States shall conclude the examination procedure within a maximum time limit of 21 months from the lodging of the application.’

B. Netherlands law

7. Article 42 of the Vreemdelingenwet 2000 (Law on foreign nationals of 2000) of 23 November 2000 (3) provides:

‘1. A decision on the application for the grant of a temporary residence permit as referred to in Article 28 or a residence permit of unlimited duration as referred to in Article 33 shall be adopted within six months of receipt of the application.

…

4. The time limit referred to in paragraph 1 may be extended a maximum of nine months, where:

a. …

b. a large number of foreign nationals lodge an application at the same time, making it very difficult in practice to conclude the procedure within the six-month time limit; or

c. …’

8. On 21 September 2022, the State Secretary adopted the Besluit houdende wijziging van de Vreemdelingencirculaire 2000 (Decree amending the Circular on Foreign Nationals of 2000; ‘the WBV 2022/22’). On the basis of the WBV 2022/22, in force as from 27 September 2022, the State Secretary extended the statutory six-month decision period for granting temporary asylum residence permits by nine months. The WBV 2022/22 applies to all requests for which the statutory decision period had not yet expired on 27 September 2022, and was adopted on the basis of the first limb and point (b) of Article 42(4) of the Law on foreign nationals of 2000, transposing point (b) of the third subparagraph of Article 31(3) of the Procedures Directive into Netherlands law.

II. The dispute in the main proceedings and the questions referred for a preliminary ruling

9. On 10 April 2022, X, a Turkish national, lodged an application for asylum in the Netherlands.

10. In September 2022, the State Secretary extended the statutory six-month decision period for granting temporary asylum residence permits by nine months.

11. Since the State Secretary failed to take a decision on the asylum application within six months of the lodging of the application on the basis of the WBV 2022/22, on 13 October 2022 X served a notice of default on that authority for failure to adopt a decision within the prescribed period. The State Secretary then failed to make a decision within 2 weeks. Consequently, X introduced an action before the rechtbank Den Haag (District Court, The Hague, Netherlands) against the failure to make a timely decision.

12. By judgment of 6 January 2023, that court declared X’s action well founded and held that the State Secretary had not lawfully extended the decision period for asylum applications on the basis of the WBV 2022/22. By that judgment, that court also ordered the State Secretary to conduct an initial hearing within eight weeks of the date of the judgment and to take a decision on X’s application within eight weeks of that initial hearing. It therefore ordered the State Secretary to adopt a decision within 16 weeks, failing which a penalty consisting in a fine for each day of delay would be imposed. (4)

13. The State Secretary brought an appeal against that judgment before the Raad van State (Council of State, Netherlands), which is the referring court. In support of that appeal, it argues that, for the purposes of applying the first limb and point (b) of Article 42(4) of the Law on foreign nationals of 2000 and point (b) of the third subparagraph of Article 31(3) of the Procedures Directive, there is no requirement of a rapid increase (‘spike’) in the number of asylum applications being lodged simultaneously. The national authority may also extend the decision period in the event of a more gradual increase in the number of asylum applications, and in combination with other circumstances, in order to ensure an adequate and complete examination of asylum applications as required by...