Joined Cases C‑244/24 and C‑290/24 ( i )

P and Others

v

Staatssecretaris van Justitie en Veiligheid

(Request for a preliminary ruling from the Rechtbank Den Haag, zittingsplaats Amsterdam and the Raad van State (Netherlands))

Judgment of the Court (Grand Chamber) of 19 December 2024

(Reference for a preliminary ruling – Asylum policy – Temporary protection in the event of a mass influx of displaced person – Directive 2001/55/EC – Articles 4 and 7 – Invasion of Ukraine by Russian armed forces – Implementing Decision (EU) 2022/382 – Article 2(3) – Option for a Member State to grant temporary protection to displaced persons who are not referred to in that decision – Point in time when a Member State that has granted such persons temporary protection may terminate that protection – Return of illegally staying third-country nationals – Directive 2008/115/EC – Article 6 – Return decision – Point in time when a Member State may issue a return decision – Illegal stay)

1. Border controls, asylum and immigration – Asylum policy – Temporary protection in the event of a mass influx of displaced persons – Directive 2001/55 – Option for a Member State to grant temporary protection to displaced persons to whom mandatory temporary protection does not apply – Persons having been displaced for the same reasons and from the same country or region of origin – Concept – Third-country nationals and stateless persons holding a temporary residence permit valid in Ukraine on 23 February 2022 and having likely left that country after 26 November 2021 – Whether included

   (Council Directive 2001/55, Art. 7; Council Decision 2022/382, recital 14 and Art. 2(1) and (3))

   (see paragraphs 96, 98-101)

2. Border controls, asylum and immigration – Asylum policy – Temporary protection in the event of a mass influx of displaced persons – Directive 2001/55 – Option for a Member State to grant temporary protection to displaced persons to whom mandatory temporary protection does not apply – Withdrawal by a Member State of optional temporary protection on a date prior to that on which mandatory temporary protection ends – Whether permissible – Conditions – Safeguarding the objectives and effectiveness of Directive 2001/55 – Observance of general principles of EU law

   (Council Directive 2001/55, Arts 2(a), 4, 6(1)(b) and 7; Council Decision 2022/382, recital 14 and Art. 2)

   (see paragraphs 109-115, 122-129, 131-135, operative part 1)

3. Border controls, asylum and immigration – Asylum policy – Return of illegally staying third-country nationals – Directive 2008/115 – Asylum policy – Temporary protection in the event of a mass influx of displaced persons – Directive 2001/55 – Third-country national residing legally on the territory of a Member State under optional temporary protection – Adoption of a return decision in respect of such a third-country national before the cessation of that protection – Whether permissible – Protection ending on a date in the near future – Suspension of the effects of the return decision until such date – No effect

   (European Parliament and Council Regulation 2018/1860, Art. 3(1); European Parliament and Council Directive 2008/115, Arts. 5 and 6; Council Directive 2001/55, Arts 2(g), 7 and 8)

   (see paragraphs 140-148, 152-158, operative part 2)

Résumé

Ruling on two references for a preliminary ruling, the Grand Chamber of the Court of Justice specifies at what point in time a Member State may end the optional temporary protection which it has granted, on the basis of Directive 2001/55 ( 1 ) and Implementing Decision 2022/382, ( 2 ) to certain categories of displaced persons other than those referred to in that implementing decision and at what point in time a Member State may issue a return decision, in accordance with Directive 2008/115, ( 3 ) with respect to persons no longer enjoying such protection.

P, AI, ZY and BG are third-country nationals who held temporary residence permits valid in Ukraine on 24 February 2022. After the Russian armed forces invaded Ukraine, they fled to the Netherlands, where they were granted temporary protection under Directive 2001/55, in accordance with the Netherlands legislation applicable at that time. ( 4 ) Under that legislation, the benefit of optional temporary protection was granted to all holders of Ukrainian residence permits, including temporary permits, valid on 23 February 2022 who were likely to have left Ukraine after 26 November 2021. ( 5 ) The Netherlands legislation did not require any assessment to be made of whether or not such persons were able to return in safe and durable conditions to their country or region of origin.

By a judgment of 17 January 2024, the Raad van State (Council of State, Netherlands) held that the temporary protection afforded to third-country nationals in the situation in which P, AI, ZY and BG found themselves would end automatically on 4 March 2024, that being the date ( 6 ) on which the temporary protection would have ceased had the Council not adopted a decision in accordance with Article 4(2) of Directive 2001/55. ( 7 ) Consequently, by four return decisions under Directive 2008/115, issued on 7 February 2024, the State Secretary ( 8 ) ordered P, AI, ZY and BG to leave the territory of the European Union within a period of four weeks commencing on 4 March 2024.

P brought an appeal before the Rechtbank Den Haag, zittingsplaats Amsterdam (District Court, the Hague, sitting in Amsterdam, Netherlands), disputing the legality of the decision concerning him.

The appeals brought by AI and BG against the decisions concerning them were upheld at first instance by judgments of 19 March and 27 March 2024. The State Secretary has brought appeals against those judgments before the Council of State. The appeal brought by ZY against the decision concerning him was, on the other hand, dismissed at first instance as unfounded, by a judgment of 27 March 2024, and ZY has brought an appeal against that judgment before the Council of State.

In the course of these disputes, the two referring courts have made references to the Court of Justice for a preliminary ruling. First, while it is necessary, in order to resolve the disputes, to determine the date on which the optional temporary protection granted by the Netherlands authorities in accordance with Directive 2001/55 ceases, those authorities harbour doubts as to whether the benefit of that protection may be withdrawn before mandatory temporary protection ( 9 ) comes to an end. Secondly, they are in doubt as to the lawfulness of the return decisions issued with respect to the appellants in the main proceedings, because those decisions were issued on a date when they were still staying legally in the Netherlands.

Findings of the Court

In the first place, the Court examines whether Articles 4 and 7 of Directive 2001/55 preclude a Member State that has granted temporary protection to categories of persons other than those referred to in Article 2(1) and (2) of the Implementing Decision from withdrawing the benefit of that optional temporary protection from those categories of persons before the mandatory temporary protection decided on by the Council under Article 4(2) of Directive 2001/55 comes to an end.

The Court begins by holding that a Member State which makes use of the option afforded by Article 7(1) of Directive 2001/55 is implementing EU law and consequently may not grant optional temporary protection to persons who have not been displaced for the same reasons and from the same country or region of origin as persons who enjoy mandatory temporary protection.

In that context, the Court notes that Article 7(1) of Directive 2001/55 and Article 2(3) of the Implementing Decision allow Member States to grant optional temporary protection to third-country nationals and stateless persons holding a temporary residence permit valid in Ukraine on 23 February 2022 who are likely to have left that country after 26 November 2021, without assessing whether or not such persons are able to return in safe and durable conditions to their country or region of origin. First, the reason for introducing mandatory temporary protection, identified by the Council in the Implementing Decision, is the invasion of Ukraine by Russian armed forces launched on 24 February 2022. Third-country nationals and stateless persons who, because of the very limited duration of their right of residence on the territory of the European Union, would have been obliged to return to Ukraine only shortly after that invasion was launched, are in a comparable situation to persons displaced as a result of the invasion. Secondly, although Article 2(3) of the Implementing Decision expressly refers, among the potential beneficiaries of optional temporary protection, to stateless persons and third-country nationals who were residing legally in Ukraine and who are unable to return in safe and durable conditions to their country or region of origin, that category of persons is mentioned merely by way of example.

Next, noting that the optional temporary protection granted by the Netherlands authorities to third-country nationals such as the appellants in the main proceedings ceased before the end of mandatory temporary protection, the Court considers whether Articles 4 and 7 of Directive 2001/55 require the benefit of that optional temporary protection to continue for as long as the mandatory temporary protection, introduced by the Council under Article 5 of that directive, continues in effect, or at least until the end of the automatic extension of the initial duration of that mandatory temporary protection, referred to in Article 4(1) of that directive.

In that regard, the Court holds that, under Article 7(1) of Directive 2001/55, the Member States can make an autonomous decision to terminate the optional temporary protection that they have granted before the mandatory temporary protection, provided for at EU level, ends. ( 10 )

First, Article 7(1) of Directive 2001/55 leaves the Member States free to set the date from which they wish to grant optional temporary protection, provided that that date is not before the date on which mandatory temporary protection comes into effect or after the date on which it ends. Secondly, the Member States retain control over the duration of the optional temporary protection they wish to grant, provided that that duration falls within the time frame for implementation of the temporary protection mechanism defined at EU level. Since such protection does not arise from an obligation laid down in EU law, but from the autonomous decision of a Member State to enlarge the circle of beneficiaries of that protection, that Member State should be able to make an autonomous decision also to withdraw that protection.

Moreover, that interpretation of Article 7(1) of Directive 2001/55 is supported both by the objective pursued by that provision, which is to encourage the Member States to extend the categories of displaced persons who can benefit from temporary protection, and by the more general objective of that directive, which is to prevent congestion in the system for granting international protection. Indeed, prohibiting a Member State from withdrawing, for reasons of its own, optional temporary protection before mandatory temporary protection, provided for at EU level, comes to an end would have the effect of discouraging the Member States from implementing the option provided for in Article 7 of Directive 2001/55 and would therefore thwart the objectives pursued by that provision and by that directive.

Nevertheless, any such decision to withdraw must not undermine either the objectives or the effectiveness of Directive 2001/55 and must comply with the general principles of EU law, in particular, the principle of the protection of legitimate expectations.

As regards, first of all, safeguarding the objectives and effectiveness of Directive 2001/55, that directive is intended, inter alia, to ensure that third-country nationals and stateless persons enjoying temporary protection continue to have a real opportunity to obtain international protection once their individual situation has been examined appropriately, while at the same time immediately ensuring that they enjoy protection on a lesser scale. It would therefore run counter to that objective and to the effectiveness of that directive if the examination of any application for international protection that such third-country nationals or stateless persons may have made, and on which no decision has yet been reached, were not completed after optional temporary protection has come to an end. Moreover, once optional temporary protection has ended, such persons cannot be prevented from effectively exercising their right to make an application for international protection, which is an essential step in the procedure for granting international protection. Accordingly, the mere fact that a beneficiary of temporary protection has not responded positively to an inquiry from the authorities of the Member State concerned as to whether he or she wishes his or her application for international protection to continue to be examined cannot have the consequence that any application for international protection he or she may make thereafter be classified as a subsequent application within the meaning of Article 2(q) of Directive 2013/32. ( 11 )

Secondly, as regards the principle of the protection of legitimate expectations, individuals cannot have a legitimate expectation that an existing situation which is capable of being altered by the EU institutions in the exercise of their discretionary power will be maintained. In this case, the Council can bring mandatory temporary protection to an end at any time ( 12 ) and the Member States cannot make any optional temporary protection that they may have introduced continue in effect after the date on which mandatory temporary protection ends. ( 13 ) It follows that the Netherlands authorities could not have given the beneficiaries of optional temporary protection any precise assurances in accordance with EU law regarding the minimum duration of that protection other than the assurance that they had undertaken not to terminate the optional temporary protection before mandatory temporary protection comes to an end. Nevertheless, it does not appear that the Netherlands authorities gave the third-country nationals in the cases in the main proceedings any such assurance, although that is a point for the referring courts to check.

The Court concludes that Articles 4 and 7 of Directive 2001/55 do not preclude a Member State, which has granted temporary protection to categories of persons other than those referred to in the Implementing Decision, from withdrawing from those categories of persons the benefit of that optional temporary protection before the mandatory temporary protection, decided on by the Council in accordance with Article 4(2) of that directive, comes to an end. ( 14 )

In the second place, the Court holds that Article 6 of Directive 2008/115 precludes the issuing of a return decision in respect of a third-country national who is legally staying in the territory of a Member State by virtue of the option exercised by that Member State to grant optional temporary protection, as provided for in Article 7 of Directive 2001/55, to that third-country national before the date on which that protection ends, including where it appears that that protection will cease to have effect on a date in the near future and the effects of the return decision are suspended until that date.

First, Directive 2008/115 precludes the issuing by a Member State of a return decision in respect of a third-country national who is staying legally in its territory, even if the competent authorities expressly state in the return decision that it will not take effect as long as the stay of the person concerned continues to be legal. Indeed, as soon as a Member State has issued a return decision, it must without delay enter an alert in the Schengen Information System, for the purposes of ‘verifying that the obligation to return has been complied with and of supporting the enforcement of … return decisions’, ( 15 ) including if the return decision does not take immediate effect. In such latter case, however, on the date when the alert is entered, the person concerned will still be staying legally in the territory of the Member State concerned and may have the right to travel to other Member States. Moreover, if a return decision were to be issued prematurely, no account could be taken of possible changes in circumstances in the period between the decision being issued and the end of the legal stay of the person concerned that could be of significance in the assessment of his or her situation.

Secondly, for as long as third-country nationals enjoy optional temporary protection, their stay in the Member State concerned is legal and therefore no return decision may be issued in respect of them. Indeed, the beneficiaries of such protection must enjoy all of the rights that are conferred by Directive 2001/55 on beneficiaries of mandatory temporary protection. ( 16 ) Accordingly, since the beneficiaries of mandatory temporary protection must be issued by the Member State concerned with a residence permit allowing him or her to reside on the territory of that Member State, ( 17 ) residence permits must also be issued to beneficiaries of optional temporary protection.

Thirdly, while there is a risk that, when optional temporary protection comes to an end, the national authorities responsible for issuing return decisions will be faced with a significant number of individuals whose situations must be examined simultaneously, that risk is not in itself sufficient to permit any derogation from the abovementioned principle. Furthermore, while the removal of illegally staying third-country nationals is, in principle, a matter of priority for the Member States, the Member States must also observe the substantive and procedural requirements imposed on them by EU law, so that such third-country nationals are returned in a humane manner and with full respect for their fundamental rights and dignity. Accordingly, where the authorities of a Member State responsible for issuing return decisions are faced with a very significant number of individuals whose cases must be examined simultaneously, because optional temporary protection has come to an end, Directive 2008/115 merely precludes such authorities from delaying for longer than is reasonable in such circumstances the issuing of the necessary return decisions in respect of the third-country nationals and stateless persons who have enjoyed such protection.

( i ) The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.

( 1 ) 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). Article 7(1) of Directive 2001/55 allows the Member States to extend the temporary protection provided for by that directive to categories of individuals other than those designated by the Council in the decision to which Article 5 of the directive refers and which implements the temporary protection, provided that such persons have been displaced for the same reasons and from the same country or region of origin.

( 2 ) By Council Implementing Decision (EU) 2022/382 of 4 March 2022 establishing the existence of a mass influx of displaced persons from Ukraine within the meaning of Article 5 of Directive 2001/55/EC, and having the effect of introducing temporary protection (OJ 2022 L 71, p. 1; ‘the Implementing Decision’), the Council decided to activate the temporary protection mechanism provided for in Directive 2001/55. Under Article 2(3) of the Implementing Decision, the Member States may also apply that decision to persons other than those referred to in Article 2(1) and (2), including stateless persons and nationals of third countries other than Ukraine who were residing legally in Ukraine and who were unable to return in safe and durable conditions to their country or region of origin.

( 3 ) 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).

( 4 ) Article 3.9a(1)(c) of the Voorschrift Vreemdelingen 2000 (2000 Regulation on foreign nationals), in the version in force between 4 March and 18 July 2022.

( 5 ) 90 days before the invasion of Ukraine by Russian armed forces.

( 6 ) This date being determined by Article 4(1) of Directive 2001/55, which provides that, ‘[w]ithout prejudice to Article 6, the duration of temporary protection shall be one year. Unless terminated under the terms of Article 6(1)(b), it may be extended automatically by six monthly periods for a maximum of one year.’

( 7 ) Article 4(2) of Directive 2001/55 provides that, ‘[w]here reasons for temporary protection persist, the Council may decide by qualified majority, on a proposal from the Commission, which shall also examine any request by a Member State that it submit a proposal to the Council, to extend that temporary protection by up to one year.’

( 8 ) The Staatssecretaris van Justitie en Veiligheid (State Secretary for Justice and Security, Netherlands; ‘the State Secretary’).

( 9 ) Mandatory temporary protection arises from the Council’s adoption of a decision under Article 5 of Directive 2001/55 establishing the existence of a mass influx of displaced persons. The effect of such a decision is to introduce temporary protection in all the Member States bound by Directive 2001/55 for the specific groups of persons described in the Council’s decision, as from the date specified that decision.

( 10 ) The Court adds that the Member States are therefore not obliged to align the duration of that optional temporary protection with the initial duration of the mandatory temporary protection or with the automatic extension period provided for in Article 4(1) of Directive 2001/55 or, where applicable, with the optional extension period provided for in Article 4(2) of that directive.

( 11 ) Directive 2013/32/EU 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).

( 12 ) See Article 6(1)(b) of Directive 2001/55.

( 13 ) See Article 7 of Directive 2001/55.

( 14 ) That Member State may withdraw the benefit of the temporary protection which it has granted to such categories of persons on a date preceding that on which the temporary protection decided on by the Council comes to an end, provided, in particular, that that Member State does not undermine either the objectives or the effectiveness of Directive 2001/55 and observes the general principles of EU law.

( 15 ) See Article 3(1) of Regulation (EU) 2018/1860 of the European Parliament and of the Council of 28 November 2018 on the use of the Schengen Information System for the return of illegally staying third-country nationals (OJ 2018 L 312, p. 1).

( 16 ) See Article 7 of Directive 2001/55.

( 17 ) See Article 8 of Directive 2001/55, read in conjunction with Article 2(g) thereof.