The Hague District Court in the Netherlands recently sought clarification from the Court of Justice of the European Union (CJEU) for issues concerning the extension of the Temporary Protection Directive (TPD) under Article 267 of the Treaty on the Functioning of the European Union (TFEU). The TPD grants the CJEU the authority to make preliminary rulings concerning treaty interpretation and the validity and interpretation of acts taken by EU institutions.
The TPD was enacted by the EU Council in response to a mass influx of displaced people from the conflict in former Yugoslavia. Established on July 20, 2001, the TPD sets minimum standards for granting temporary protection in instances of mass displacements, affording a buffer for member states’ asylum systems that would otherwise be overwhelmed. The directive became part of Netherlands’ national law on December 16, 2004.
In 2022, armed conflicts in Ukraine resulted in mass displacement of Ukrainians into the EU, sparking the activation of the temporary protection mechanism on March 4, 2022. This measure was subsequently extended for another year. The Council later decided in 2023 to further extend the temporary protection for those fleeing the conflict in Ukraine, from March 4, 2024, to March 4, 2025, in order to provide stability and prospects for Ukrainian refugees.
The recent court case involved a Nigerian man who had fled to the Netherlands as a third-country national, meaning he belonged to the group upon which TPD was applied. However, the Netherlands’ secretary of state followed an earlier ruling, deciding that the individual’s lawful residence would end by law on March 4, 2024, subsequently requiring him to leave the EU within four weeks. The plaintiff argued that this decision, based on a flawed interpretation of TPD, was unlawful as the temporary protection for third-country nationals was set to continue until March 4, 2025. He also stated that he was covered by the 2023 Extension Decree.
In response to these concerns, the court rejected the secretary of state’s view that the plaintiff’s appeal was inadmissible. Instead, it concluded that the secretary of state was not authorised to make the return decision on February 7, 2024, due to the plaintiff’s lawful residence status at that time. The court also suggested a correct interpretation of EU law would allow the plaintiff to fall under the Extension Decree, thereby entitling him to temporary protection until March 4, 2025.
The court though admitted that the answer to these legal issues was not straightforward and therefore sought guidance from the CJEU on three particular questions. These questions centre on whether a return decision could be issued while an individual is still lawfully residing in a member state, whether the return decision’s timing factors into its legality, and the interpretation of Article 1 of the Extension Decree.
The final judgment on the case is still pending, and the decision will be reserved until the CJEU provides its preliminary ruling. Full details of the case can be found here.