Request for a preliminary ruling (Article 267 TFEU) — pending case · NL26.51553
Unofficial translation of the SOS Patto summary. The original decision or document is available in Italian only.
Headnote
The Dutch court asks the Court of Justice whether the interest in border control is, in itself, sufficient to justify the detention of an applicant whose application is examined in the border procedure; whether detention ordered systematically, with any less coercive measure excluded by legislative choice, meets an objective of general interest recognised by the Union (Article 52(1) of the Charter) and is compatible with Article 10(2) of Directive (EU) 2024/1346, which allows detention only on the basis of an individual assessment and where less coercive alternative measures cannot be applied effectively; whether the court must establish of its own motion that detention is necessary; and what consequences follow from the absence of legal assistance during the screening that precedes detention.
By interlocutory judgment of 15 September 2026 (ECLI:NL:RBDHA:2026:26975) the District Court of The Hague, sitting in Amsterdam, stays the proceedings on the detention of a stateless Palestinian applicant who arrived by air at Schiphol and refers nine questions to the Court of Justice, requesting the urgent preliminary ruling procedure or, in the alternative, the expedited procedure. Detention ended on 12 September, when the Minister abandoned the border procedure; the reference is maintained because the answer affects the lawfulness of the detention orders made every day at Schiphol. The Court of Justice case number is not yet known.
In the Netherlands the border procedure always entails detention in a closed centre. Ministerial instructions exclude only unaccompanied minors, as a rule families with minor children, cases of disproportionality owing to individual circumstances and special procedural needs that cannot be met in detention. Less coercive measures are not provided for, by the Minister's declared choice, since he regards them as equivalent to de facto entry. The screening, conducted without legal assistance, does not take into account the prospects of the application, the situation in the country of origin or the applicant's willingness to cooperate.
Article 54(1) and (4) of Regulation (EU) 2024/1348 allows the applicant to be required to reside at designated locations, including open ones, without this amounting to an authorisation to enter: in the court's view, Union law does not necessarily link the border procedure to detention. It therefore doubts that systematic detention pursues an objective of general interest recognised by the Union and that the general renunciation of alternatives is compatible with Article 10(2) of Directive (EU) 2024/1346 and with recital 33 of Directive (EU) 2024/1346. Those who do not fall within the exceptions, it observes, are detained for the sole reason that they have applied for protection, contrary to Article 10(1) of Directive (EU) 2024/1346.
The other questions concern the review of its own motion of the necessity of detention (with reference to CJEU, 8 November 2022, joined cases C-704/20 and C-39/21), the relevance of the prospects of the application in the choice of the border procedure in light of Articles 44 and 45 of Regulation (EU) 2024/1348, the intensity of the examination of alternatives and of proportionality, and the effects of the absence of effective legal assistance under Article 11(1) of Directive (EU) 2024/1346, read together with Articles 6 and 47 of the Charter.
The reference openly departs from the Dutch Council of State (Raad van State, 2 September 2026, ECLI:NL:RVS:2026:5077), which held the practice to be consistent with Union law. In Italy, Article 5-ter(2) of Legislative Decree 142/2015 provides, for the border procedure, for an authorisation to reside in a specific place, not for detention (Tribunal of Naples 14217/2026); the Court's reading of Article 10(2) of Directive (EU) 2024/1346 will nonetheless apply to any detention ordered at the border without an individual examination of alternative measures.
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