Summaries of judgments made in collaboration with the Portuguese judge and référendaires of the CJEU (Nuno Piçarra, Mariana Tavares and Sophie Perez)

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Judgment of the Court (Grand Chamber) of 12 November 2019, Zubair Haqbin v Federaal Agentschap voor de opvang van asielzoekers – Case C-233/18, EU:C:2019:956

Reference for a preliminary ruling — Applicants for international protection — Directive 2013/33/EU — Article 20(4) and (5) — Serious breaches of the rules of the accommodation centres as well as seriously violent behaviour — Scope of the Member States’ right to determine the sanctions applicable — Unaccompanied minor — Reduction or withdrawal of material reception conditions

Facts

The Court of Justice ruled for the first time on the scope of the right conferred on Member States by Article 20(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 (OJ 2013 L 180, p. 96). The request for a preliminary ruling has been made in proceedings between Z. Haqbin and the Federaal Agentschap voor de opvang van asielzoekers (Federal agency for the reception of asylum seekers, Belgium) concerning a claim for compensation brought by the former following a decision to temporarily excluded him from material reception conditions.

Z. Haqbin, of Afghan nationality, arrived in Belgium as an unaccompanied minor and lodged an application for international protection on December 2015. He was then hosted in a reception centre. In that centre, Z. Haqbin was involved in a brawl with other residents of various ethnic origins. Following that brawl, the director of the reception centre decided to exclude Z. Haqbin for a period of 15 days from material aid in a reception facility. During that period of exclusion (between April and May 2016), Z. Haqbin, according to his own statements, spent his nights in a park in Brussels and stayed with friends.

Z. Haqbin lodged an application to suspend the exclusion measure referred above. That application was dismissed for lack of extreme urgency, since Z. Haqbin had failed to show that he was homeless. Z. Haqbin then brought an action seeking cancellation of that measure and compensation for the damage suffered. The referring court before which Z. Haqbin lodged an appeal against the first-instance ruling that dismissed his action, asked the Court of Justice whether it was possible for the Belgian authorities to withdraw or reduce material reception conditions in respect of an applicant for international protection in Z. Haqbin’s situation. Moreover, with regard to his particular situation, the question arose as to the conditions under which such a sanction can be imposed on an unaccompanied minor.

Decision

Article 20(4) of Directive 2013/33 states that Member States may determine ‘sanctions’ applicable to serious breaches, by the applicant, of the rules of the accommodation centres as well as to seriously violent behaviour of the applicant. In that regard, the Court of Justice clarified that the ‘sanctions’ referred to in Article 20(4) of Directive 2013/33 may, in principle, concern material reception conditions. However, such sanctions must, in accordance with Article 20(5) of the directive, be objective, impartial, motivated and proportionate to the particular situation of the applicant and must, under all circumstances, ensure a dignified standard of living according to Article 1 CFREU.

Therefore, a sanction that is imposed exclusively on the basis of one of the reasons mentioned in Article 20(4) of Directive 2013/33 and consists in the withdrawal, even if only a temporary one, of the full set of material reception conditions or of material reception conditions relating to housing, food or clothing would be irreconcilable with the requirement, arising from Article 20(5) of the directive, to ensure a dignified standard of living for the applicant, since it would preclude the applicant from being allowed to meet his or her most basic needs. Such a sanction would also amount to a failure to comply with the proportionality requirement under Article 20(5) of Directive 2013/33, in so far as even the most stringent sanctions, whose objective is to punish, in criminal law, the breaches or behaviour referred to in Article 20(4) of the directive, cannot deprive the applicant of the possibility of meeting his or her most basic needs. The Court added that Member States are required to guarantee continuously and without interruption a dignified standard of living and that the authorities of the Member States are required to ensure, under their supervision and under their own responsibility, the provision of material reception conditions guaranteeing such a standard of living, including when they have recourse, where appropriate, to private natural or legal persons in order to carry out, under their authority, that obligation.

That consideration does not call into question that, in the cases envisaged in Article 20(4) of Directive 2013/33, depending on the circumstances of the case and subject to the requirements set out in Article 20(5) of the directive, Member States may impose sanctions that do not have the effect of depriving the applicant of material reception conditions, such as being held in a separate part of the accommodation centre as well as being prohibited from contacting certain residents of the centre or being transferred to another accommodation centre or to other housing. Similarly, Article 20(4) and (5) of Directive 2013/33 does not preclude a measure to hold the applicant in detention pursuant to Article 8(3)(e) of the directive in so far as the conditions laid down in Articles 8 to 11 thereof are satisfied.

Lastly, the Court of Justice emphasized that, where the applicant, as in the main proceedings, is an unaccompanied minor, that is to say a ‘vulnerable person’ within the meaning of Article 21 of Directive 2013/33, the authorities of the Member States, when imposing sanctions pursuant to Article 20(4) of the directive, must especially take into account, according to Article 20(5) thereof, of the particular situation of the minor and of the principle of proportionality and must in particular take due account of the best interests of the child according to Article 24 CFREU. This interpretation does not preclude the authorities of a Member State from deciding to entrust the care of the minor concerned to child protection services or to the judicial authorities responsible therefor.

In the light of all of the foregoing, the Court of Justice interpreted Article 20(4) and (5) of Directive 2013/33, read in the light of Article 1 CFREU, as meaning that a Member State cannot, among the sanctions that may be imposed on an applicant for serious breaches of the rules of the accommodation centres as well as seriously violent behaviour, provide for a sanction consisting in the withdrawal, even temporary, of material reception conditions, relating to housing, food or clothing, in so far as it would have the effect of depriving the applicant of the possibility of meeting his or her most basic needs. The imposition of other sanctions under Article 20(4) of the directive must, under all circumstances, comply with the conditions laid down in Article 20(5) thereof, including those concerning the principle of proportionality and respect for human dignity. In the case of an unaccompanied minor, those sanctions must, in the light, inter alia, of Article 24 CFREU, be determined by taking particular account of the best interests of the child.

Judgement of the Court (Grand Chamber), of 12 November 2019, Commission v Ireland,(Parc éolien de Derrybrien), Case C‑261/18, EU:C:2019:955

Failure of a Member State to fulfil obligations — Judgment of the Court establishing a failure to fulfil obligations — Non-compliance — Directive 85/337/EEC — Consent for, and construction of, a wind farm — Project likely to have significant effects on the environment — Absence of a prior environmental impact assessment — Obligation to regularise — Article 260(2) TFEU — Application for an order to pay a penalty payment and a lump sum

The Court of Justice of the European Union delivered a judgment on 12 November 2019, imposing pecuniary penalties on Ireland for failing to give concrete effect to the judgment of 3 July 2008, Commission v Ireland, (C-215/06 Commission v Ireland, EU:C:2008:380). The Court had held in that judgment that Ireland had infringed Directive 85/337 2 as a result of the construction of a wind farm at Derrybrien (Ireland) without a prior environmental impact assessment having been carried out. According to the Press release of the Court:

“Following the delivery of the 2008 judgment, Ireland had introduced a regularisation procedure by which it sought to enable the operator of the Derrybrien wind farm (‘the wind farm’) to comply with the requirements of Directive 85/337. However, since the wind farm operator had not undergone that procedure and nor had that procedure been initiated by the Irish authorities of their own initiative, the Commission brought a second action for failure to fulfil obligations before the Court.

First of all, the Court examined the Member States’ obligations when a project has been authorised in breach of the obligation to carry out a prior environmental impact assessment under Directive 85/337. The Court pointed out that Member States are required, in accordance with the principle of sincere cooperation, to take all measures necessary to remedy the failure to carry out an environmental impact assessment. They are, in particular, under an obligation to carry out an assessment for regularisation purposes, and this also after a plant has entered into operation. Such an assessment must take into account not only the future impact of the plant at issue, but also the environmental impact from the time of its completion. The assessment may result in the consents which were granted in breach of the obligation to carry out a prior assessment being amended or withdrawn.

Notwithstanding the legislative reform introducing a regularisation procedure, Ireland had failed to carry out a new environmental impact assessment of the wind farm, thereby failing to have regard to the authority attaching to the 2008 judgment.

Next, the Court rejected the different arguments put forward by Ireland to justify itself. First, Ireland cannot rely on national provisions limiting the possibilities for commencing the regularisation procedure introduced in order to ensure that that 2008 judgment was complied with. In that context, the Court pointed out that the national authorities were required to remedy the failure to carry out an impact assessment and that the obligations flowing from Directive 85/337 also applied to the wind farm’s operator, since it was controlled by Ireland. Secondly, although the consents for the construction of the wind farm at Derrybrien have become final, Ireland cannot rely on legal certainty and legitimate expectations derived by the wind farm’s operator from acquired rights, in order to avoid the consequences flowing from the objective finding that there was a failure to fulfil obligations under Directive 85/337. In that regard, the Court stated that projects in respect of which the consent can no longer be subject to challenge before the courts cannot be purely and simply deemed to be lawfully authorised as regards the obligation to assess their effects on the environment.

In the light of the seriousness and duration of the failure to fulfil obligations, with more than 11 years having elapsed since the 2008 judgment without the measures necessary to comply with that judgment having been adopted, and having regard to Ireland’s ability to pay, the Court ordered Ireland to pay the European Commission a lump sum of €5 000 000, and also a periodic penalty payment of €15 000 per day from the date of delivery of the judgment in the present case until the date of compliance with the 2008 judgment.”