Provisional text

OPINION OF ADVOCATE GENERAL

EMILIOU

delivered on 26 June 2025 (1)

Joined Cases C‑50/24 to C‑56/24 [Danané] (i)

X (C‑50/24)

X (C‑51/24)

X (C‑52/24)

X (C‑53/24)

X (C‑54/24)

X (C‑55/24)

X (C‑56/24)

Commissaire général aux réfugiés et aux apatrides

(Request for a preliminary ruling from the Conseil du Contentieux des Étrangers (Council for asylum and immigration proceedings, Belgium))

( Reference for a preliminary ruling – Border controls, asylum and immigration – Procedures for granting international protection – Border procedures – Directive 2013/32/EU – Article 43 – Place of detention during a border procedure – Detention ensuing after the four-week limitation period for border procedures – Priority examination of an application for international protection – Continuation of the border procedure as an ordinary procedure – Ex officio powers of the national court )

I. Introduction

1. The oft-discussed contrast between the physical presence of applicants for international protection in a Member State’s territory and the legal fiction that they have not formally entered it, together with the frequently criticised use of detention in border procedures, forms the backdrop to the present joined cases, which have come before the Court on the cusp of legislative reform of the Common European Asylum System.

2. The present request for a preliminary ruling, made by the Conseil du Contentieux des Étrangers (Council for asylum and immigration proceedings, Belgium; ‘the referring court’) invites the Court to clarify the scope of the border procedure under Article 43 of Directive 2013/32/EU (2) (‘the Procedures Directive’) and the consequences arising from the expiry of the four-week period within which such a procedure must be completed.

3. At the core of the questions referred lies the issue of whether an applicant for asylum may be detained, for the purposes of a border procedure, in a facility which is not geographically ‘at the border or in a transit zone’ and may continue to be detained, under Directive 2013/33/EU (3) (‘the Reception Directive’), at what is geographically the same facility, beyond the four-week border procedure limitation period.

II. Legal framework

A. European Union law

1. The Procedures Directive

4. Article 31 of that directive, entitled ‘Examination procedure’, provides in paragraphs 7 and 8 thereof:

‘7. Member States may prioritise an examination of an application for international protection in accordance with the basic principles and guarantees of Chapter II in particular:

(a) where the application is likely to be well-founded;

(b) where the applicant is vulnerable, within the meaning of Article 22 of Directive [2013/33], or is in need of special procedural guarantees, in particular unaccompanied minors.

8. Member States may provide that an examination procedure in accordance with the basic principles and guarantees of Chapter II be accelerated and/or conducted at the border or in transit zones in accordance with Article 43 if:

(a) the applicant, in submitting his or her application and presenting the facts, has only raised issues that are not relevant to the examination of whether he or she qualifies as a beneficiary of international protection by virtue 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)]; …

…’

5. Pursuant to Article 43 of the Procedures Directive, entitled ‘Border procedures’:

‘1. Member States may provide for procedures, in accordance with the basic principles and guarantees of Chapter II, in order to decide at the border or transit zones of the Member State on:

(a) the admissibility of an application, pursuant to Article 33, made at such locations; and/or

(b) the substance of an application in a procedure pursuant to Article 31(8).

2. Member States shall ensure that a decision in the framework of the procedures provided for in paragraph 1 is taken within a reasonable time. When a decision has not been taken within four weeks, the applicant shall be granted entry to the territory of the Member State in order for his or her application to be processed in accordance with the other provisions of this Directive.

3. In the event of arrivals involving a large number of third-country nationals or stateless persons lodging applications for international protection at the border or in a transit zone, which makes it impossible in practice to apply there the provisions of paragraph 1, those procedures may also be applied where and for as long as these third-country nationals or stateless persons are accommodated normally at locations in proximity to the border or transit zone.’

6. Article 46 of the same directive, entitled ‘The right to an effective remedy’, provides, in paragraphs 1 and 3 thereof:

‘1. Member States shall ensure that applicants have the right to an effective remedy before a court or tribunal, against the following:

(a) a decision taken on their application for international protection, including a decision:

(i) considering an application to be unfounded in relation to refugee status and/or subsidiary protection status;

(ii) considering an application to be inadmissible pursuant to Article 33(2);

(iii) taken at the border or in the transit zones of a Member State as described in Article 43(1);

…

3. In order to comply with paragraph 1, Member States shall ensure that an effective remedy provides for a full and ex nunc examination of both facts and points of law, including, where applicable, an examination of the international protection needs pursuant to Directive [2011/95], at least in appeals procedures before a court or tribunal of first instance.’

2. The Reception Directive

7. Article 8 of the Reception Directive, under the heading ‘Detention’, provides:

‘1. Member States shall not hold a person in detention for the sole reason that he or she is an applicant in accordance with [the Procedures Directive].

2. When it proves necessary and on the basis of an individual assessment of each case, Member States may detain an applicant, if other less coercive alternative measures cannot be applied effectively.

3. An applicant may be detained only:

…

(b) in order to determine those elements on which the application for international protection is based which could not be obtained in the absence of detention, in particular when there is a risk of absconding of the applicant;

…’

B. Belgian law

1. The Law of 15 December 1980

8. The loi du 15 décembre 1980 sur l’accès au territoire, le séjour, l’établissement et l’éloignement des étrangers (Law of 15 December 1980 on access to the territory, residence, settlement and removal of foreign nationals; ‘the Law of 15 December 1980’ (4)) transposes into Belgian law the provisions of the Procedures and Reception Directives which are relevant to the case at issue.

9. In particular, Article 57/6/4 of that law transposes Article 43(1) and (2) of the Procedures Directive, providing notably that the Commissaire général aux réfugiés et aux apatrides (Commissioner General for Refugees and Stateless Persons, Belgium; ‘the CGRA’), shall be competent to declare an application made at the border as inadmissible or to take a decision on its substance in certain defined circumstances (corresponding to those laid down in Article 31(8) of the Procedures Directive). Pursuant to that provision, read in conjunction with Article 74/5(4)(5) of the same law, if the CGRA has not taken a decision on the application for international protection within four weeks, the applicant shall be authorised to enter the territory.

10. As regards detention, Article 74/5 of the same law provides that foreign nationals who do not fulfil the conditions for entry into the territory and who make an application for international protection at the border ‘may be detained at an assigned place at the border’. That article further provides that ‘the King may designate other locations within the Kingdom [of Belgium]’ that are deemed equivalent to [an assigned place at the border]’; such detention cannot be regarded as authorisation to enter the territory.

11. Finally, Article 74/6(1)(2) of the Law of 15 December 1980 provides that an applicant for international protection may be detained ‘in a assigned place in the Kingdom’, inter alia on the ground set out in Article 8(3)(b) of the Reception Directive.

2. The Royal Decrees of 14 May 2009 and of 17 February 2012

12. By virtue of a Royal Decree of 14 May 2009 (5) (‘the 2009 Royal Decree’), accommodation sites such as the Sint-Gillis-Waas accommodation site are treated as ‘assigned places at the border’.

13. By virtue of a Royal Decree of 17 February 2012 (6) (‘the 2012 Royal Decree’), the ‘Caricole Transit Centre’ located in the territory of Belgium is likewise treated as ‘an assigned place at the border’.

III. Background to the dispute and the questions referred for a preliminary ruling

14. The seven joined cases giving rise to the present reference for a preliminary ruling stem from largely similar factual circumstances, which may be summarised as follows.

15. All of the applicants in the main proceedings are third-country nationals who arrived by plane at Brussels Airport (Belgium) between September and October 2023. Upon arrival, or the following day, each of the applicants lodged an application for international protection at the border. Consequently, their applications were forwarded to the competent determining authority, the CGRA, for assessment, under a ‘border procedure’, in accordance with Article 57/6/4 of the Law of 15 December 1980, which transposes Article 43(1) and (2) of the Procedures Directive.

16. Each applicant was subsequently served with two decisions: first, a decision refusing entry into Belgian territory (7) and, secondly, a decision ordering ‘detention in an assigned place at the border’ (‘the first detention decision’), (8) by the ministre de l’Asile et de la Migration (Minister for Asylum and Migration, Belgium; ‘the Minister’).

17. In Cases C‑50/24 to C‑53/24, the place of detention of the applicants was the Caricole Transit Centre, located just outside Brussels Airport (which constitutes an EU external border),(9) at a distance of approximately two kilometres therefrom, in a straight line. In Cases C‑54/24 to C‑56/24, the applicants were detained at the Sint-Gillis-Waas accommodation site, (10) situated over 40 kilometres from Brussels Airport. Thus, albeit not literally ‘at the border’, both locations are treated as ‘assigned places at the border’, pursuant to the 2012 and 2009 Royal Decrees, respectively.

18. In none of the seven cases was a decision on the application for international protection taken within the four-week period provided for in Article 43(2) of the Procedures Directive, as transposed in Article 57/6/4 of the Law of 15 December 1980 (‘the four-week period’).

19. Instead, in all of the cases, upon the lapse of that period, each applicant received a new decision by the Minister, ordering ‘detention in an assigned place’ (that is to say, no longer ‘at the border’, as per the first detention decision, but within the territory). That decision, ‘the second detention decision’, provided that, in view of the expiry of the four-week period, the applicant was deemed authorised to enter the territory. However, pursuant to that decision, his or her further detention was considered necessary, on the basis of Article 74/6(1)(2) of the Law of 15 December 1980, ‘in order to determine those elements on which the application for international protection [was] based which could not be obtained if the applicant were not detained, in particular [in the light of] a risk of absconding of the applicant’.

20. The second detention decision entailed no physical relocation for the applicants, who remained detained in the same places as they were previously (the Caricole Transit Centre and the Sint‑Gillis‑Waas accommodation site, respectively). The national authorities nevertheless considered that the legal fiction under which those places were regarded as being ‘at the border’ no longer applied after the four-week period, and that they were thenceforth considered, as they were in reality, as places of detention within the territory. In other words, while the legal basis for the applicants’ detention as well as the legal classification of the place of detention changed, there was no actual physical change of the applicants’ place of detention.

21. In parallel, the CGRA, as the determining authority competent to examine the applications for international protection, conducted personal interviews with each applicant. In Cases C‑51/24 and C‑53/24, the interviews took place within the four-week period and thus before the second detention decision. In the remaining cases, the applicants were interviewed after the expiry of the four-week period and the second detention decision.

22. Between November and December 2023, the CGRA, deciding under a priority procedure, (11) rejected each of the applications for international protection. In particular, in Case C‑51/24, the CGRA rejected the application as inadmissible, while in the other six cases, the CGRA issued decisions refusing both refugee and subsidiary protection status on the merits.

23. The applicants brought actions against those decisions rejecting their respective applications for international protection before the referring court.

24. In this context, the referring court, harbouring doubts as to the compatibility with EU law, and most notably Article 43 of the Procedures Directive, of the procedure followed, decided to stay the proceedings in the seven cases before it and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Does a procedure for examining an application for international protection made at the border or in a transit zone by an applicant who, during that procedure, is detained in a place located geographically in the national territory but treated by legislation as a place at the border fall within the scope of Article 43 of [the Procedures Directive]?

(2) Does the examination of such an application for international protection made by an applicant who, after the four-week period laid down in Article 43(2) of [the Procedures Directive], is automatically admitted to the national territory under national law, but on the basis of a new detention decision remains detained at the same place of detention initially considered to be a place at the border and now categorised by the authorities as a place in the national territory, still fall within the scope of Article 43 of [the Procedures Directive]?

– May the same place of detention, in the same international protection procedure, be initially treated by legislation as a place at the border and, after the applicant has been authorised to enter the national territory owing to the expiry of the four-week time limit or following a decision to conduct a subsequent examination, be regarded as a place in the national territory?

– What is the implication of the applicant’s detention in the same place, which is geographically situated in the national territory but which was treated initially as a place at the border and subsequently categorised by the Belgian authorities as a place of detention in the national territory owing to the expiry of the four-week period, for the temporal and substantive competence of the determining authority?

(3.1) May a determining authority which initiated an examination of an application for international protection in a border procedure and which allows the four-week time limit laid down in Article 43(2) of [the Procedures Directive] for taking a decision on that application to elapse or which has previously taken a decision to carry out a subsequent examination, even though all the investigative steps, including the personal interview, were carried out prior to the expiry of the time limit, continue the examination of that application as a matter of priority as provided for in Article 31(7) of that directive, while the applicant remains detained, further to a decision of another authority, in the same place of detention, initially treated as a place at the border, on the ground that his or her detention is necessary “in order to determine those elements on which the application for international protection is based which could not be obtained if the applicant were not detained, in particular when there is a risk of absconding of the applicant”?

(3.2) May a determining authority which initiated an examination of an application for international protection in a border procedure and which allows the four-week time limit laid down in Article 43(2) of [the Procedures Directive] for taking a decision on that application to elapse or which has previously taken a decision to carry out a subsequent examination, without carrying out a personal interview with the applicant within this period, continue the examination of that application as a matter of priority as provided for in Article 31(7) of that directive, while the applicant remains detained, further to a decision of another authority, in the same place of detention initially treated as a place at the border, on the ground that his or her detention is necessary “in order to determine those elements on which the application for international protection is based which could not be obtained if the applicant were not detained, in particular when there is a risk of absconding of the applicant”?

(4) Is such an application of national legislation compatible with the exceptional nature of the applicant’s detention deriving from Article 8 [the Reception Directive] and the general objective of [the Procedures Directive]?

(5) Must [Article 31(7), Article 31(8) and Articles 43 and 46] of [the Procedures Directive], in conjunction with Article 47 of the Charter [of Fundamental Rights of the European Union (‘the Charter’)], be interpreted as meaning that the [referring court], when hearing an action against a decision taken in a procedure initiated at the border, must raise of its own motion a failure to comply with the four-week time limit?’

IV. Procedure before the Court

25. The requests for a preliminary ruling were lodged with the Registry of the Court on 26 January 2024. By decision of 14 March 2024, the seven cases were joined for the purposes of the written and oral parts of the procedure and the judgment.

26. Written observations were submitted by the Belgian, German, Czech and Italian Governments, as well as by the European Commission and the applicant in Case C‑53/24. The Belgian, Czech and German Governments, the Commission and the applicants in Cases C‑51/24 and C‑52/24 presented oral argument at the hearing held on 27 February 2025.

V. Analysis

27. All of the questions referred relate to the border procedure, set out in Article 43 of the Procedures Directive. I shall address these questions in turn, in the order in which they were submitted by the referring court. Before doing so, however, I consider it appropriate to briefly outline the main features of the border procedure, having regard to the relevant case-law of the Court, which has already been called upon on previous occasions to interpret that provision. (12)

A. The main features of the border procedure

28. As the referring court observes, Article 43 of the Procedures Directive gives Member States the possibility to provide, at their borders or in their transit zones, for specific procedures known as the ‘border procedures’, in order to decide on: (i) the admissibility of applications for international protection made at such locations and/or (ii) their substance in the circumstances exhaustively set out in Article 31(8) of that directive. Those circumstances essentially concern situations where the applicant’s conduct or statements suggest that their application is manifestly unfounded and abusive. (13)

29. Furthermore, as the Court has observed, it follows from recital 38 of the Procedures Directive that border procedures are intended to enable Member States to take a decision on applications for international protection made at the border or in a transit zone, ‘prior to a decision on the entry of the applicant’ to the territory. (14) The fact that the applicants have not been formally granted entry to the territory is a defining feature of the border procedure. It notably enables Member States to return those applicants whose applications have been rejected, without being bound by the full set of safeguards provided for by Directive 2008/115/EC. (15)

30. Nevertheless, under Article 43(2) of the Procedures Directive, an applicant must be granted entry to the territory if a decision on his or her application for international protection has not been taken within a period of four weeks from the date the application was made. Consequently, with a view to enabling a decision to be taken within that four-week period, border procedures are generally characterised by shorter procedural time limits. (16)

31. Finally, although Article 43 of the Procedures Directive does not explicitly provide for detention, the Court has held that, read together with Article 8(3)(c) of the Reception Directive, it authorises Member States to detain applicants subject to a border procedure for a maximum period of four weeks. (17)

B. The first question – applicability of the border procedure in case of detention at a place not geographically ‘at the border’

32. By its first question, the referring court asks whether a procedure for examining an application for international protection made at the border or in a transit zone qualifies as a ‘border procedure’, within the meaning of Article 43 of the Procedures Directive, if the applicant is detained in a facility that is geographically located within the territory but which national law treats as a place at the border. (18) Thus, in essence, the question is whether the detention of an applicant in a facility that is not actually geographically at ‘the border or in a transit zone’ precludes the application of a border procedure.

33. In this regard, I note first of all that the wording of Article 43 of the Procedures Directive makes no explicit reference to detention, nor, therefore, more specifically, to the place of potential detention, in the context of a border procedure. That provision rather only refers to ‘deci[sions] at the border or transit zones’ and to applications made ‘at those locations’.

34. That said, Article 31(8) of the same directive (to which Article 43 refers only with respect to decisions on the substance) refers to procedures ‘conducted at the border or in transit zones’. This could imply – some might argue – that applicants are to remain (and, where applicable, be detained), throughout the procedure, strictly at the border or in transit zones. On the other hand, it must also be observed that neither Article 8(3)(c) of the Reception Directive, which allows detention in the context of border procedures, nor Article 18(1)(a) of that same directive, concerning the housing of applicants during the examination of an application made at the border or in transit zones, includes any reference to the location of applicants in the course of the border procedure.

35. It is true that the most straightforward and commonly envisaged implementation of border procedures by Member States involves the detention of applicants at the border or in transit zones. (19) It is in the context of such cases that the Court has referred to detention ‘at the border or in transit zones’during border procedures.

36. However, I do not consider that this need necessarily be the case. In my view, the wording of Article 43 does not allow for the unequivocal conclusion that, for the border procedure to apply, the place of detention of the applicants must be geographically located precisely at the border or in a transit zone. (20)

37. Such a restrictive reading – supported by the Commission – does not, moreover, appear to me to follow from either the objective or the context of Article 43 and would disregard the interests of both the Member States and applicants subject to border procedures.

38. In particular, concerning first the objective of Article 43 of the Procedures Directive (see points 28 and 29 above), the border procedure is designed to enable an initial screening of applications for international protection before entry to the territory is formally authorised only for those applicants whose claims have not been rejected. (21) The fulfilment of that objective is not affected, in any way, by the physical location of the applicant during the examination of his or her application, nor does it necessarily require that it take place strictly at the border or within a transit zone.

39. On the contrary, requiring that detention take place strictly geographically at the border or in a transit zone could risk compromising that objective and depriving Article 43 of the Procedures Directive of its effet utile, depending on the geographical and infrastructural specificities of Member States. As the Italian Government has pointed out, such a restrictive reading of Article 43 could render it excessively difficult for certain Member States, for example those with extensive sea borders, to apply border procedures in a manner which is fully compliant with both the basic principles and guarantees of Chapter II of the Procedures Directive and the safeguards for detention laid down in Articles 9 to 11 of the Reception Directive.

40. Instead, insisting on detention at the border or in transit zones, which may entail structural and spatial limitations, could lead Member States to use suboptimal facilities, merely to be able to apply border procedures, even where better conditions of detention for applicants could be provided farther inland. It is clear, to my mind, that such a formalistic approach would not serve the interests of applicants detained in the context of a border procedure.

41. This consideration is particularly relevant in the present cases. As noted by both the referring court and the Belgian Government, there are currently no detention facilities in Belgium which are located at the border or in transit zones, the previously existing facilities within Brussels Airport having been closed due to inadequate infrastructure. The Caricole Transit Centre was, in fact, constructed purposefully to replace those inadequate facilities, with the aim of providing improved detention conditions for applicants for international protection.

42. Turning now to the context of Article 43 of the Procedures Directive, it is worth noting that border procedures function on the premiss of several legal fictions. First, what is commonly referred to as the ‘fiction of non-entry’: (22) applicants who have crossed the border and thus are physically present in the territory are, for the purposes of the border procedure, legally considered not to have entered the territory and must therefore await a decision on whether they are authorised to enter.

43. Secondly, ports of entry – and notably international airports such as Brussels Airport – are considered, also by virtue of a legal fiction, (23) to constitute ‘borders’, despite being geographically within the territory of Member States. Likewise, transit zones are in essence treated in both the Procedures Directive and the Reception Directive as being equivalent to borders, even though they are geographically located beyond the border-crossing point and thus in the territory of a State. (24)

44. These established legal fictions demonstrate, in my view, that the geographical reality of an applicant being within the territory does not preclude the application of a border procedure.

45. In my opinion, it follows from all the foregoing considerations that, under Article 43 of the Procedures Directive, detention cannot be strictly required to take place at the border in order for border procedures to apply. I must nevertheless clarify that, to my mind, that does not mean that Member States may transfer applicants arbitrarily and on an ad hoc basis from their point of entry to any inland facility, subjecting them to uncertainty and unnecessary transfers. Rather, I consider, having regard to the need for legal certainty, that what may be permitted is the advance and general designation of places for detention for the purposes of the border procedure,(25) which may well be situated inland, with a view to ensuring the most appropriate conditions for applicants.

46. I note that the above conclusion applies irrespective of whether the designated place of detention is two kilometres from the border (such as the Caricole Transit Centre) or farther inland (as is, for example, the case for the Sint-Gillis-Waas accommodation site).

47. The Commission’s suggestion to the contrary, namely that Member States’ flexibility in determining the place of detention in border procedures should in any event be limited to areas ‘sufficiently near’ the border, (26) would be difficult to apply in a legally certain and coherent manner. On the one hand, a strict requirement of proximity to the border would affect Member States differently depending on their size and geography. On the other hand, it would give rise to the classic sorites paradox: at what precise point does ‘sufficiently near’ stop being ‘sufficiently near’?

48. For the sake of completeness, I also note that the conclusion reached in point 45 above is not called into question by the argument that the Commission has put forward on the basis of Article 43(3) of the Procedures Directive. According to that provision, in the event of a mass influx of applicants for international protection, border procedures may be applied ‘where and for as long as these [applicants] are accommodated normally at locations in proximity to the border or transit zone’. The Commission has essentially drawn an argument a contrario from this wording, concluding that, save in the exceptional situation of a mass influx, a border procedure cannot be conducted ‘in proximity to’ the border (and thus even less so farther inland), but must take place precisely ‘at the border or in the transit zone’.

49. However, the Court has clarified that Article 43(3) is rather intended, in exceptional circumstances, to extend the temporal scope of the border procedure beyond four weeks (‘for as long as’), in which case applicants would not be detained but rather ‘accommodated normally’.(27) Consequently, in my view, that provision cannot serve to limit the scope of the border procedure applied under normal circumstances, by restricting the acceptable location of places of detention occurring within the limits of the four-week period.

50. Lastly, I must observe that the conclusion reached in point 45 above corresponds to the approach explicitly adopted in the new Asylum Procedures Regulation, (28) which is set to enter into effect, replacing the Procedures Directive, as of 12 June 2026. That regulation explicitly allows Member States flexibility in determining the locations where applicants may be detained during a border procedure, providing that ‘applicants [shall be required] to reside at or in proximity to the external border or transit zones as a general rule or in other designated locations within its territory, fully taking into account the specific geographical circumstances of that Member State’. (29) While the Commission maintains that this explicit flexibility in the new regulation implies that such flexibility does not exist under the current legal framework, such a reading is supported neither by the preamble to the regulation nor by its travaux préparatoires.

51. In the light of all the foregoing considerations, I propose that the Court respond to the first question to the effect that Article 43 of the Procedures Directive does not preclude the examination, under a border procedure, of an application for international protection made at the border or in a transit zone when the applicant is detained in a facility that is geographically inland.

C. The second question – consequences of the expiry of the four-week period

1. Does the border procedure apply after the four-week period in the event of continued detention?

52. The referring court’s second question comprises three sub-questions. By the first sub-question, the referring court essentially asks whether a border procedure within the meaning of Article 43 of the Procedures Directive is still applicable after the expiry of the four-week period, when the applicant concerned remains detained in the same place of detention, which, before the end of that period, was treated as a place at the border but which is subsequently regarded as a place in the territory.

53. In my view, the answer to this question is evident from Article 43(2) of the Procedures Directive, which provides that, in the absence of a decision on the application for international protection within the four-week period, the applicant shall be granted entry to the territory ‘in order for his or her application to be processed in accordance with the other provisions of [that] Directive’. The Court has already interpreted this to mean that, after the four-week period, the application for international protection must be dealt with in accordance with the ordinary procedure, (30) namely the general procedure laid down in Article 31 of the Procedures Directive. Therefore, pursuant to Article 43(2) of that directive, the border procedure can no longer apply once the four-week period has expired.

54. The circumstance that the applicant concerned may continue to be detained, be it at the border or in the territory, after the expiry of that period has, to my mind, no bearing on this unequivocal conclusion. What Article 43(2) of the Procedures Directive entails, as the Court has clarified, is that, with the end of the border procedure after four weeks, any ensuing detention can no longer be justified on the basis of such a procedure. (31) Accordingly, a potentially ensuing detention, even if at the border or in a transit zone, could not render a procedure followed after the four-week period a ‘border procedure’.

55. Consequently, the legal classification of the place of detention after the four-week period (as either at the border or within the territory) is irrelevant as to the type of procedure followed, which can in any event no longer be a ‘border procedure’. This conclusion holds true regardless of the position taken in relation to the first question and all the more so if one were to consider, as I have argued above, that the place of detention is not determinative of the type of procedure applied even during the four-week period.

56. If the foregoing position is accepted, it would follow, on the basis of the considerations set out by the referring court, (32) that the remaining sub-questions under the second question are largely moot for the resolution of the disputes in the main proceedings. I nevertheless turn now to those sub-questions for the sake of a rounded assessment of the second question.

2. Can the same place of detention be considered as ‘at the border’ and subsequently ‘in the territory’?

57. By the second sub-question, the referring court enquires, in essence, whether the same place of detention can both initially be treated as a place at the border and, following the expiry of the four-week period, (33) be regarded, as it actually is, geographically, as a place within the territory.

58. In my view, nothing in the Procedures Directive or the Reception Directive precludes this approach. As already outlined above, neither of those directives mandates a specific geographical location for detention. What is required is rather more fundamentally that the detention conditions and guarantees for detained applicants, as laid down in Articles 9 to 11 of the Reception Directive, are fully respected.(34) As the Belgian Government has pointed out, those conditions and guarantees do not differ based on the geographical location or legal classification of the place of detention.

59. Moreover, I also see merit in the Belgian Government’s argument that this approach, in circumstances such as those in the cases at issue, would allow for a more efficient and rapid overall procedure. Notably, this approach would obviate the need for a transfer process to another facility, if the applicant is to continue to be detained.

60. All of this certainly presupposes that there is a valid justification for the continued detention of the applicant, based on one of the other self-standing (35) grounds of detention under Article 8 of the Reception Directive, and that a new detention decision is issued accordingly. Likewise, it is essential, in my view, that the applicant be duly informed of the change in his or her legal situation, namely that he or she has been authorised to enter the territory, even if at that stage this legal change is not accompanied by a physical one.

3. How is the competence of the determining authority affected by detention ensuing after the expiry of the four-week period?

61. Moving on now to the third sub-question, the referring court seeks guidance on what implication an applicant’s continued detention in the same place (treated initially as a place at the border and, after the four-week period, as a place in the territory) has on the temporal and substantive competence of the determining authority.

62. In the light of my preceding observations, I am of the view that the continued detention and change of legal classification of the place of detention, at the four-week mark, has, in itself, no bearing on the competence of the determining authority, that is to say, the authority designated by the Member State as responsible for examining and deciding on applications for international protection. (36)

63. It is rather the expiry of the four-week period that could perceivably have an impact on the competence of that authority, considering that the expiry leads to a shift from the border procedure to the ordinary procedure. However, I note that, in Belgium’s case the determining authority is the same, the CGRA, which is competent to decide on applications for international protection under both procedures, within the limits, of course, of the respective rules and different deadlines of each procedure.

64. The referring court’s focus seems to be (37) on whether, in the event of such a shift from the specific border procedure to the ordinary procedure, the competence of the determining authority remains limited by the deadlines and scope (38) it had under the border procedure. In my view, this is not the case. It is evident from Article 43(2) of the Procedures Directive that, after the four-week period, the application is to be processed under the other provisions of that directive, meaning that the examination is no longer subject to the material and temporal limitations of the provisions governing the border procedure. (39)

65. In the light of all of the foregoing, I propose that the Court answer the second question to the effect that the examination of an application for international protection does not fall within the scope of Article 43 of the Procedures Directive after the expiry of the four-week time limit laid down in that provision, irrespective of the applicant’s potential continued detention and the legal classification, whether at the border or in the territory, of the place of that detention.

D. The third question – examination of applications after the expiry of the four-week period

66. By its third question, the referring court asks whether an application for international protection, initially subject to a border procedure, can, after the expiry of the four-week period, be examined as a matter of priority, within the meaning of Article 31(7) of the Procedures Directive, while the applicant remains detained, now under Article 8(3)(b) of the Reception Directive, in the same facility, when (i) all ‘investigative steps’, including the personal interview, were completed within the four-week period, or (ii) the personal interview was not conducted within the four-week period. As I understand it, this question raises two issues that must be addressed.

1. Can applications be treated as a matter of priority after the four-week period?

67. The first issue to be assessed is whether an examination of an application for international protection, initiated under a border procedure and continuing under an ordinary procedure, may, after the expiry of the four-week period, be ‘prioritised’ within the meaning of Article 31(7) of the Procedures Directive.

68. The answer to this point is in my view rather straightforward. Article 31(7) of the Procedures Directive provides Member States with the flexibility to deal with an application for international protection as a matter of priority, examining it before others, within the normally applicable procedural time limits, principles and guarantees. That article does not exhaustively set out the situations in which an examination may be prioritised, but refers only indicatively to certain such situations. Therefore, in the wording of recital 19 of the Procedures Directive, Member States may ‘prioritise the examination of any application’ (emphasis added), provided that the basic principles and guarantees of Chapter II of the directive are respected.

69. As such, the choice of the Belgian legislature, applicable to the present cases, to prioritise the examination of applications when the applicants concerned are under detention is, in principle, in line with Article 31(7) of the Procedures Directive. That approach, I would add, also appears conducive to a swift and efficient procedure, in line with recital 18 of the Procedures Directive, (40) and to ensuring that detention is imposed only for the shortest period necessary, in accordance with the requirements of the Reception Directive. (41)

2. Can investigative steps under the border procedure be relied on after the expiry of the four-week period?

70. As a second point, the referring court can also be understood as further enquiring whether investigative steps taken under the border procedure can be relied upon for the purpose of a decision after the expiry of the four-week period and thus under the ordinary procedure.

71. In my view, this is precisely what moving from a border procedure to an ordinary procedure for the examination of an application, pursuant to Article 43(2) of the Procedures Directive, entails. Requiring the determining authority to start its examination de novo and to disregard previously taken investigative steps would run contrary to the need for an efficient and swift procedure.

72. Notwithstanding the above, I cannot disregard the context of this question, which the referring court has presented as follows: ‘In practice, the short time limits and the detention at the border [which characterise the Belgian border procedure] may compromise the basic principles and guarantees provided for in Chapter II of [the Procedures Directive] (including access to a lawyer [or] the necessary time to collect all the useful documentation to support the application …)’. (42)

73. The referring court appears, to my mind, to suggest that, consequently, the investigative steps under the border procedure may be of a lower quality and thus should not be relied on under the ordinary procedure. On this point, I can only stress that investigative steps that do not meet the standards of the basic principles and guarantees of Chapter II of the Procedures Directive cannot be relied on for a decision, either under an ordinary procedure or under a border procedure. Respect for said basic principles and guarantees is a fundamental and explicit condition for the application of all procedures under the Procedures Directive, including the border procedure. (43) It would therefore be for the national court to assess, in examining the cases before it, whether those basic principles and guarantees have been upheld throughout the procedures applied.

74. I must, in any event, clarify that reliance on investigative steps taken under the border procedure should be without prejudice to the applicant’s right, first, to make further representations, submitting any new elements which they may have been practically prevented from presenting earlier, (44) and, secondly, to benefit from any additional safeguards that may only apply in the context of the ordinary procedure – for instance the possibility to receive a copy of the report or the transcript of the personal interview before a decision is taken. (45)

75. In the light of the above, I would suggest that the Court reply to the third question to the effect that Article 43 of the Procedures Directive must be interpreted as allowing a determining authority to continue the examination of an application for international protection, initiated under the border procedure, after the four-week time limit laid down in that provision , as a matter of priority and to rely on investigative steps taken under that procedure, in circumstances such as the ones at issue in the present cases, provided that the basic principles and guarantees set out in Chapter II of the Procedures Directive are respected, as applicable throughout each stage of the process.

E. The fourth question – compatibility of national practice with the Reception Directive and the Procedures Directive

76. By its fourth question, the referring court asks whether ‘such an application of national legislation’ is compatible with the exceptional nature of the applicant’s detention deriving from Article 8 of the Reception Directive and from the general objective of the Procedures Directive.

77. Since the question’s reference to ‘such an application of national legislation’ is rather vague, I can only understand it as encompassing the entire sequence of steps followed by the Belgian authorities, as they have applied it in all seven cases at issue, with a particular emphasis on the detention of the applicants. The reference to the general objective of the Procedures Directive also appears unclear in this context, considering that the main objective of that directive, as stated in recital 12 thereof, is ‘to further develop the standards for procedures in Member States for granting and withdrawing international protection with a view to establishing a common asylum procedure in the Union’. The referring court may, rather, be understood as referring to the directive’s further aim, as set out in recital 60 thereof, which is ‘to ensure full respect for human dignity and to promote the application of [certain fundamental rights under] the Charter’, including notably the respect for human dignity, the prohibition of torture and inhuman or degrading treatment and the right to asylum.

78. In view of this emphasis, I note that the referring court has made clear that it has no competence to review the decisions ordering the detention of the applicants and that the disputes before it concern only the decisions rejecting the applications for international protection as unfounded or inadmissible. In the light of this, similarly to the Belgian Government, I must admit to having certain reservations as to the relevance of the question for the dispute in the main proceedings and thus as to its admissibility.

79. That said, I must acknowledge the fact that the fourth question referred, as I understand it and analyse it below, contains several parameters that cannot unequivocally be regarded as irrelevant to the purposes of the dispute in the main proceedings. Accordingly, and also bearing in mind the presumption of relevance of the questions referred, (46) I consider it appropriate to address this question – in so far as it may be understood that, for the referring court, the approach followed by the national authorities could have an impact on the validity of the procedure applied.

80. Read in the light of the order for reference as a whole, I understand the referring court as questioning the compatibility with the Procedures and Reception Directives of a practice by Belgian authorities consisting in (i) initiating the examination of an application under a border procedure, while detaining the applicant on the basis of Article 8(3)(c) of the Reception Directive, in an inland detention place which is treated as a place at the border, (ii) and, following the expiry of the four-week period, issuing a new detention order; (iii) extending the applicant’s detention in the same facility, which is no longer regarded as a place at the border; (iv) justifying the further detention on the basis of a different ground, namely Article 8(3)(b) of the Reception Directive, ‘in order to determine those elements on which the application for international protection is based which could not be obtained in the absence of detention’, whether or not all investigative steps, and notably the personal interview, have been completed.

81. I shall start with point (iv), the only aspect not already addressed in the context of the previous questions and one which was already alluded to by the referring court in its third question. With respect to this point, I must admit that I fail to see what additional elements forming the basis of an application for international protection remain to be obtained, when all investigative steps, including most notably the personal interview, have been completed. As such, it would seem to me that, after the final investigative step, the ground of Article 8(3)(b) of the Reception Directive ceases to apply. I also note in this respect that Article 9(1) of the same directive provides that an applicant shall be detained ‘only for as short a period as possible and … only for as long as the grounds set out in Article 8(3) are applicable’. (47) In the light of the foregoing, I am of the view that once all investigative steps have been completed, meaning that the authorities have gathered all the information necessary for their assessment and no additional steps are envisaged, an applicant’s detention can no longer persist on the ground of Article 8(3)(b) of the Reception Directive.

82. On the other hand, as regards points (i) to (iii), I have already expressed my view, in my analysis of the preceding questions, that, as a matter of principle, they do not raise an issue of compatibility with EU law.

83. However, it would be remiss of me not to add that the almost identical sequence of steps followed in all seven cases could indicate, as the applicants have claimed, that this is an approach systematically relied on by the national authorities. And this, in addition to the matter discussed in point 81 above, would raise concerns, in my view, in terms of compatibility with EU law and, in particular, Article 8 of the Reception Directive and Article 43 of the Procedures Directive, considered in the light of the aim of the Procedures Directive, which is to promote and uphold the fundamental rights of applicants (see point 77 above).

84. Specifically, systematic recourse to the approach set out in point 80 above would suggest that detention, during both the border and the ordinary procedure, is quasi-automatic, rather than an exceptional measure of last resort decided following an assessment on a case-by-case basis of its proportionality and necessity, as mandated by Article 8(2) of the Reception Directive. (48) Under that assumption, systematically applying a border procedure to applications for international protection, despite foreseeable difficulties in complying with the four-week deadline, while keeping the applicants in detention based on an artificial change of the ground of detention, could amount to abuse of the border procedure and a circumvention of the four-week limitation provided in Article 43(2) of the Procedures Directive.

85. In the light of these considerations, I suggest that the Court reply to the fourth question to the effect that the Reception and Procedures Directives do not preclude a practice such as that at issue in the main proceedings – essentially consisting in maintaining in detention, beyond a four-week period, an applicant whose application was initially subject to the border procedure, in what is physically the same location, on the basis of a different ground for detention – provided that any measure of detention has been duly adopted on the basis of an individualised assessment of necessity and proportionality and is maintained only for as long as the relevant ground of detention continues to apply.

F. The fifth question – ex officio judicial review by the national court

86. By its fifth and final question, the referring court asks, in essence, whether, Article 31(7), Article 31(8) and Articles 43 and 46 of the Procedures Directive, in conjunction with Article 47 of the Charter, must be interpreted as meaning that, when hearing an action against a decision taken in a procedure initiated at the border, it must raise of its own motion the failure to adopt that decision with the four-week time limit laid down in Article 43(2) of the Procedures Directive. (49) It appears from the case file that this question is only relevant with respect to the applicants in two of the seven cases who do not appear to have raised such an admissible plea before the referring court. (50)

87. In view of my position on the preceding questions, it seems to me that there is no longer any need to answer this question, which has become largely moot. Indeed, given the above analysis and the specific factual circumstances of the case – particularly the fact that the same determining authority is competent under both the border and the ordinary procedure – it is difficult to see how the answer to this question would have any impact on the resolution of the disputes in the main proceedings.

88. In the event that the Court were nevertheless to consider that it should provide an answer to this question, having taken a different position with respect to the preceding questions, (51) I submit the following observations.

89. First, pursuant to settled case-law of the Court, EU law does not require national courts to raise of their own motion pleas alleging infringement of provisions of EU law, where examination of those pleas would oblige them to go beyond the ambit of the dispute defined by the parties themselves. (52)

90. Notwithstanding the foregoing, the Court has also observed that Article 46(3) of the Procedures Directive, read in the light of Article 47 of the Charter, which guarantees applicants the right to an effective remedy, requires that a national court, before which a decision relating to an application for international protection is contested, is required to carry out ‘a full and ex nunc examination of both facts and points of law’. The Court has held that such a full and ex nunc examination must include an ex officio review of certain procedural aspects – to the extent that they have been brought to the attention of the national court – which are liable to have an impact on the examination procedure applied to such applications. (53)

91. In my view, as a matter of principle, the expiry of the four-week period without a decision on the application for international protection constitutes such a procedural aspect, as it triggers a shift from the border procedure to the ordinary procedure, and thus a change of the examination procedure applied. (54) I therefore consider that the case-law cited in the preceding point is applicable to the present context and that, as a matter of principle, failure to adopt a decision within the four-week period must be reviewed by the national court ex proprio motu.

92. Consequently, if the Court decides to answer the fifth question, I would propose that it provide an answer to the effect that Article 46(3) of the Procedures Directive, read in the light of Article 47 of the Charter, must be interpreted as meaning that, where an action is brought before a national court against a decision rejecting an application for international protection, which was initially examined under an Article 43 border procedure, that court must, as part of its full and ex nunc review, examine, of its own motion, on the basis of the information brought to its attention during the proceedings before it, a failure to adopt a decision within the four-week time limit laid down in Article 43(2) of the Procedures Directive.

VI. Conclusion

93. Having regard to all the foregoing considerations, I propose that the Court answer the questions referred by the Conseil du Contentieux des Étrangers (Council for asylum and immigration proceedings, Belgium) as follows:

(1) Article 43 of 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 (‘the Procedures Directive’)

does not preclude the examination, under a border procedure, of an application for international protection made at the border or in a transit zone when the applicant is detained in a facility that is geographically inland.

(2) The examination of an application for international protection does not fall within the scope of Article 43 of the Procedures Directive after the expiry of the four-week time limit laid down in that provision, irrespective of the applicant’s potential continued detention and the legal classification, whether at the border or in the territory, of the place of that detention.

(3) Article 43 of the Procedures Directive

must be interpreted as allowing a determining authority to continue the examination of an application for international protection, initiated under the border procedure, after the four-week time limit laid down in that provision, as a matter of priority and to rely on investigative steps taken under that procedure, in circumstances such as the ones at issue in the present cases, provided that the basic principles and guarantees set out in Chapter II of the Procedures Directive are respected, as applicable throughout each stage of the process.

(4) 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, and the Procedures Directive,

do not preclude a practice such as that at issue in the main proceedings – essentially consisting in maintaining in detention, beyond a four-week period, an applicant whose application was initially subject to the border procedure, in what is physically the same location, on the basis of a different ground for detention – provided that any measure of detention has been duly adopted on the basis of an individualised assessment of necessity and proportionality and is maintained only for as long as the relevant ground of detention continues to apply.

(5) Article 46(3) of the Procedures Directive, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union,

must be interpreted as meaning that, where an action is brought before a national court against a decision rejecting an application for international protection, which was initially examined under an Article 43 border procedure, that court must, as part of its full and ex nunc review, examine, of its own motion and on the basis of the information brought to its attention during the proceedings before it, a failure to adopt a decision within the four-week time limit laid down in Article 43(2) of the Procedures Directive.

1 Original language: English.

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.

2 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).

3 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).

4 Moniteur belge of 31 December 1980, p. 14584.

5 Arrêté royal du 14 mai 2009 fixant le régime et les règles de fonctionnement applicables aux lieux d’hébergement au sens de l’article 74/8, § 1er, de la loi du 15 décembre 1980 (Royal Decree of 14 May 2009 establishing the regime and the operating rules applicable to accommodation sites as referred to in Article 74/8(1) of the Law of 15 December 1980), Moniteur belge of 27 May 2009, p. 38857.

6 Arrêté royal du 17 février 2012 déterminant un lieu visé par l’article 74/8, § 2, de la loi du 15 décembre 1980 (Royal Decree of 17 February 2012 determining a site covered by Article 74/8(2) of the Law of 15 December 1980), Moniteur belge of 15 March 2012, p. 15767.

7 On the ground that the applicants did not meet the entry conditions provided for by the Law of 15 December 1980 (including, for example, possession of a valid visa).

8 On the basis of Article 74/5(1)(2) of the Law of 15 December 1980, which corresponds to the detention ground of Article 8(3)(c) of the Reception Directive, namely in order to decide, in the context of a border procedure, on the applicant’s right to enter the territory.

9 See Article 2(2) of Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ 2016 L 77, p. 1), which defines external borders as ‘the Member States’ land borders, including river and lake borders, sea borders and their airports, river ports, sea ports and lake ports, provided that they are not internal borders’.

10 Both the referring court and the Belgian Government have referred to this accommodation site as a place of detention for the applicants concerned.

11 Pursuant to Article 57/6(2) of the Law of 15 December 1980, where an applicant is detained in an assigned place, either in the territory or at the border, the decision of the CGRA must be taken as a matter of priority; see also Article 31(7) of the Procedures Directive.

12 See judgments of 14 May 2020, Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság, C‑924/19 PPU and C‑925/19 PPU, EU:C:2020:367, (‘the judgment in FMS and Others’); of 17 December 2020, Commission v Hungary (Reception of applicants for international protection), C‑808/18, EU:C:2020:1029 (‘the judgment in Commission v Hungary’); and of 30 June 2022, Valstybės sienos apsaugos tarnyba and Others, C‑72/22 PPU, EU:C:2022:505 (‘the judgment in Case C‑72/22 PPU’).

13 See the judgment in Case C‑72/22 PPU, paragraph 74, and my Opinion in the same case (EU:C:2022:431, point 126; ‘my Opinion in Case C‑72/22 PPU’).

14 See the judgment in FMS and Others, paragraph 236.

15 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); see Article 2(2)(a) and Article 4(4) thereof.

16 See, for example, European Parliamentary Research Service, ‘Asylum procedures at the border – European implementation assessment ’, PE 654.201, November 2020 (‘the EPRS report’).

17 See the judgment in FMS and Others, paragraph 239.

18 I note that while the term ‘borders’ can be understood by reference to the Schengen Borders Code (see footnote 9 above), there is no legal definition of ‘transit zone’ in the Procedures Directive, nor in other relevant pieces of legislation. Nevertheless, under the usual meaning of the term in everyday language, transit zones are typically understood to be areas, generally within international airports and seaports, next or adjacent to border-crossing points (even though their precise extent is determined by the State concerned), where persons having crossed the border remain temporarily, awaiting onward travel or authorisation for entry into the State.

It must also be pointed out that the provisions of the Law of 15 December 1980 introducing border procedures, in the exercise of the discretion afforded by Article 43 of the Procedures Directive, refer only to ‘borders’ and make no mention of ‘transit zones’. The present analysis nevertheless concerns both these terms, as they appear, in tandem, in Article 43.

19 See, for example, comparative studies: European Asylum Support Office (EASO), ‘Border procedures for asylum applications in EU+ countries, September 2020’ and the EPRS report, footnote 16, op. cit.

20 Thus, concretely, in areas adjacent to border-crossing points, considering that a person cannot be detained on a border line.

21 See, in that regard, my Opinion in Case C‑72/22 PPU, point 127.

22 See, for example, European Parliament resolution of 10 February 2021 on the implementation of Article 43 of Directive [2013/32] (OJ 2021 C 465, p. 47).

23 Explicitly set out, under EU law, in the Schengen Borders Code; see footnote 9 above.

24 See also ECtHR, 25 June 1996, Amuur v. France, CE:ECHR:1996:0625JUD001977692, § 52, focusing on the law applying in those zones.

25 Rather than directly designating the place of detention during border procedures, the Belgian legislation achieves the same result through a two-step approach: first requiring detention at ‘a place at the border’ and then, by legal fiction, designating which places qualify as such. That approach does not, however, alter the substance of the present analysis.

26 The Commission’s argument is presented in the context of acknowledging that Member States enjoy discretion in designating the precise location and extent of transit zones; see footnote 18 above.

27 See the judgment in FMS and Others, paragraph 242 et seq., and the judgment in Commission v Hungary, paragraph 181.

28 Regulation (EU) 2024/1348 of the European Parliament and of the Council of 14 May 2024 establishing a common procedure for international protection in the Union and repealing Directive [2013/32] (OJ L 2024/1348).

29 See Article 54 of the Asylum Procedures Regulation.

30 See the judgment in FMS and Others, paragraph 235.

31 Ibid., paragraph 241.

32 See particularly the national case-law cited in point 3.1.1 of the order for reference.

33 The referring court also refers (here, as well as in the third question), to the situation of a decision of subsequent examination, which is an intermediate decision, finding that a subsequent examination is necessary. Under Belgian law, such a decision has the same consequence as the expiry of the four-week period, namely that the applicant is authorised to enter the territory. It is understood that a decision of subsequent examination was adopted in Cases C‑54/24 to C‑56/24, which, however, had no impact on the status of the applicants concerned, who were already authorised to enter the territory in view of the expiry of the four-week period. As such, it is not relevant to make a specific assessment concerning the situation of decisions of subsequent examination.

34 See Article 26(1) of the Procedures Directive, which makes cross-references in this regard to the Reception Directive.

35 See the judgment in Case C‑72/22 PPU, paragraph 83 and the case-law cited.

36 See Article 2(f) and Article 4(1) of the Procedures Directive.

37 See, to that effect, point 4.3.(b)(ii) of the order for reference.

38 It may be recalled that under a border procedure a decision on the substance may only be taken in the circumstances exhaustively set out in Article 31(8) of the Procedures Directive.

39 Nevertheless, if an accelerated procedure were to follow a border procedure, a decision on the substance would necessarily remain limited to the circumstances that are exhaustively set out in Article 31(8) of the Procedures Directive, with respect to both of these types of procedure.

40 Recital 18 of the Procedures Directive reads: ‘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.’

41 See Article 9 and recital 16 of the Reception Directive.

42 See point 4.3(b)(iv) of the order for reference.

43 See Article 31(1), Article 31(7), Article 31(8) and Article 43(1) of the Procedures Directive.

44 In line with Article 40 of the Procedures Directive.

45 See, in that regard, Article 17(5) of the Procedures Directive.

46 See judgment of 8 November 2022, Staatssecretaris van Justitie en Veiligheid (Ex officio review of detention), C‑704/20 and C‑39/21, EU:C:2022:858, (‘the judgment in C‑704/20 and C‑39/21’), paragraph 61 and the case-law cited.

47 The second subparagraph of Article 9(1) of the Reception Directive moreover provides: ‘Administrative procedures relevant to the grounds for detention set out in Article 8(3) shall be executed with due diligence. Delays in administrative procedures that cannot be attributed to the applicant shall not justify a continuation of detention.’ In addition, recital 16 of that directive also states that detention ‘shall not exceed the time reasonably needed to complete the relevant procedures’.

48 See judgment of 25 June 2020, Ministerio Fiscal (Authority likely to receive an application for international protection), C‑36/20 PPU, EU:C:2020:495, paragraphs 101 to 105 and the case-law cited; see also recital 15 of the Reception Directive.

49 The referring court refers, more broadly, to a ‘failure to comply with the four-week time limit’. Considering that (i) that court has no jurisdiction in detention matters and (ii) in all cases the applicants were formally authorised to enter the territory, the non-compliance raised can only be understood to concern the absence of a decision within that four-week period.

50 More specifically, unlike the other applicants, the applicants in Cases C‑52/24 and C‑53/24 did not raise, in their initial actions, a plea alleging infringement of Article 57/6/4 of the Law of 15 December 1980, which transposes Article 43 of the Procedures Directive. Although the applicants did subsequently invoke that alleged infringement during the hearing, the referring court has indicated that pleas not raised at the stage of the initial action are in principle inadmissible.

51 For example, if the Court considers that, after the four-week period, account cannot be taken of investigative steps undertaken during that four-week period (as opposed to my view set out in points 71 to 75 above).

52 See the judgment in C‑704/20 and C‑39/21, paragraph 91 and the case-law cited.

53 Judgment of 4 October 2024, Ministerstvo vnitra České republiky, Odbor azylové a migrační politiky, C‑406/22, EU:C:2024:841.

54 Furthermore, in the cases at issue, the applicants who did not raise a relevant plea in their initial action unquestionably brought the matter to the attention of the referring court, not least by raising it at the stage of the hearing; see footnote 50 above.