Joined Cases C‑473/13 and C‑514/13

Adala Bero

v

Regierungspräsidium Kassel
and
Ettayebi Bouzalmate

v

Kreisverwaltung Kleve

(Requests for a preliminary ruling from the Bundesgerichtshof and the Landgericht München I)

(Area of freedom, security and justice — Directive 2008/115/EC — Common standards and procedures in Member States for returning illegally staying third-country nationals — Article 16(1) — Detention for the purpose of removal — Detention in prison accommodation — Not possible to provide accommodation for third-country nationals in a specialised detention facility — No such facility in the Land where the third-country national is detained)

Summary — Judgment of the Court (Grand Chamber), 17 July 2014

Border controls, asylum and immigration — Immigration policy — Return of illegally staying third-country nationals — Directive 2008/115 — Detention for the purpose of removal — Obligation on a Member State with a federal structure to detain the third-country nationals, as a rule, in a specialised detention facility even if there are no such facilities in the competent federated state

(European Parliament and Council Directive 2008/115, Art. 16(1))

Article 16(1) of Directive 2008/115 on common standards and procedures in Member States for returning illegally staying third-country nationals must be interpreted as requiring a Member State, as a rule, to detain illegally staying third-country nationals for the purpose of removal in a specialised detention facility of that State even if the Member State has a federal structure and the federated state competent to decide upon and carry out such detention under national law does not have such a detention facility.

The obligation, laid down in the first sentence of Article 16(1) of Directive 2008/115, requiring detention to take place as a rule in specialised detention facilities is imposed upon the Member States as such, and not upon the Member States according to their respective administrative or constitutional structures.

The national authorities responsible for applying the national legislation transposing Article 16 of Directive 2008/115 must therefore be able to detain third-country nationals in specialised detention facilities.

This interpretation of Article 16(1) of Directive 2008/115 nevertheless does not mean that a Member State which has a federal structure is obliged to set up specialised detention facilities in each federated state. However, it must be ensured, inter alia pursuant to agreements providing for administrative cooperation, that the competent authorities of a federated state that does not have such facilities can provide accommodation for third-country nationals pending removal in specialised detention facilities located in other federated states.

(see paras 28, 29, 31, 32, operative part)