Legal context

The dispute in the main proceedings and the questions referred for a preliminary ruling

18. Mr Haqbin, of Afghan nationality, arrived in Belgium as an unaccompanied minor and lodged an application for international protection on 23 December 2015. A guardian was appointed for him and he was hosted at the Sugny reception centre and subsequently at the Broechem reception centre. In that last centre, on 18 April 2016, he was involved in a brawl between residents of various ethnic origins. The police had to intervene to put an end to the disturbance and arrested Mr Haqbin on the ground that he was allegedly one of the instigators of the brawl. Mr Haqbin was released the following day.

19. By decision of the director of the Broechem reception centre of 19 April 2016, confirmed by decision of the director-general of Fedasil of 21 April 2016, Mr Haqbin was excluded, for a period of 15 days, from material support in a reception facility, pursuant to subparagraph 2(7) of Article 45 of the Law on reception.

20 According to his own statements and those of his guardian, Mr Haqbin spent the nights from 19 to 21 April and from 24 April to 1 May 2016 in a park in Brussels and stayed with friends or acquaintances on the other nights.

21. On 25 April 2016, Mr Haqbin's guardian lodged before the arbeidsrechtbank te Antwerpen (Labour Court, Antwerp, Belgium) an application to suspend the exclusion measure imposed by the decisions referred to in paragraph 19 above. That application was dismissed for lack of extreme urgency, since Mr Haqbin had failed to show that he was homeless.

22. From 4 May 2016 Mr Haqbin was assigned to a different reception centre.

23. Mr Haqbin's guardian brought an action before the Nederlandstalige arbeidsrechtbank te Brussel (Dutch-speaking Labour Court, Brussels, Belgium), seeking cancellation of the decisions of 19 and 21 April 2016 and compensation for the damage suffered. By judgment of that court on 21 February 2017 the action was dismissed as unfounded.

24. On 27 March 2017 Mr Haqbin's guardian brought an appeal against that judgment before the referring court, the arbeidshof te Brussel (Higher Labour Court, Brussels, Belgium). On 11 December 2017 Mr Haqbin, who had reached his majority in the meantime, continued the proceedings in his own name.

25. The referring court considers that Article 20 of Directive 2013/33 raises an issue of interpretation. It notes that the Contact Committee set up with the European Commission to assist Member States with the transposition of Directive 2013/33 stated at the meeting of 12 September 2013 that, in its opinion, Article 20(4) of the directive provided for sanctions of a type other than measures involving the reduction or withdrawal of material reception conditions. In the committee's opinion, that interpretation follows from the exhaustive nature of the reasons, set out in Article 20(1) to (3) of the directive, justifying the reduction or withdrawal of material reception conditions. However, in the opinion the Raad van State (Council of State, Belgium) gave in the context of the drafting history of the Law of 6 July 2016 amending the Law on reception (Moniteur belge of 5 August 2016, p. 47647), which was adopted for the purposes of the partial transposition of Directive 2013/33, the Raad van State (Council of State) considered that that was not the only conceivable reading of Article 20 of Directive 2013/33, in the light of the drafting and the interaction of Article 20(4) to (6) of the directive.

26. According to the referring court, the answer to be given to the question of interpretation referred to in the previous paragraph is relevant to the resolution of the dispute before it since, if Article 20 of Directive 2013/33 were to be interpreted as meaning that exclusion from material reception conditions is permissible only in the cases set out in Article 20(1) to (3) of the directive and is not permissible in the context of a sanction pursuant to Article 20(4) thereof, that would be sufficient for a ruling that the decisions of 19 and 21 April 2016 are unlawful and that Fedasil erred in imposing a sanction contrary to the law.

27. Moreover, the referring court takes the view that the practical application of the requirement to ensure a dignified standard of living for all applicants, which is incumbent upon Member States under Article 20(5) and (6) of Directive 2013/33, also raises questions. In that regard, it notes in particular that it is apparent from the drafting history of the Law of 6 July 2016 amending the Law on reception, referred to in paragraph 25 above, and, specifically, from the explanatory memorandum to the draft legislation that, according to the competent ministers, the objective of Directive 2013/33 can be achieved by the possibility afforded to applicants who are temporarily or definitively excluded from material reception conditions to approach one of the private centres for the homeless, a list of which is said to be provided to them.

28. According to the referring court, the question arises as to whether, in order to ensure a dignified standard of living for applicants, the public authority responsible for their reception must have adopted the necessary measures to make sure that an asylum seeker who has been excluded from material reception conditions by way of sanction nevertheless enjoys a dignified standard of living or whether it may simply rely on private assistance and intervene only if the latter is unable to ensure such a standard of living for the person concerned.

29. Lastly, if it were to be considered that the sanctions referred to in Article 20(4) of Directive 2013/33 may take the form of exclusion from material reception conditions, the referring court asks whether such sanctions may be imposed on a minor and, in particular, an unaccompanied minor.

30. In those circumstances, the arbeidshof te Brussel (Higher Labour Court, Brussels) decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling:

1. 1. ‘Must Article 20(1) to (3) of Directive [2013/33] be interpreted as enumerating exhaustively the cases in which material reception conditions may be reduced or withdrawn, or does it follow from Article 20(4) and (5) thereof that withdrawal of the right to material reception conditions may also occur by means of sanctions for serious breaches of the rules relating to reception centres and serious acts of violence?

2. 2. Must Article 20(5) and (6) [of that directive] be interpreted as meaning that Member States, before taking a decision on the reduction or withdrawal of material reception conditions or on the imposition of sanctions, must, in the context of those decisions, lay down the measures necessary for guaranteeing the right to a dignified standard of living during the period of exclusion, or can those provisions be complied with by a system whereby, after the decision to reduce or withdraw the material reception conditions, an examination is carried out as to whether the person who is the subject of the decision enjoys a dignified living standard and, if necessary, remedial measures are taken at that point?

3. 3. Must Article 20(4) to (6) [of the directive], read in conjunction with Articles 14 [and 21 to 24 thereof] and [with Articles 1, 3, 4 and 24] of the Charter of Fundamental Rights of the European Union, be interpreted as meaning that a measure or sanction of temporary (or definitive) exclusion from the right to material reception conditions is possible, or impossible, in respect of a minor, specifically in respect of an unaccompanied minor?’

Consideration of the questions referred

31. By its questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 20(4) of Directive 2013/33 must be interpreted as meaning that a Member State can, among the sanctions that may be imposed on an applicant in the event of serious breaches of the rules of the accommodation centres as well as seriously violent behaviour, provide for the withdrawal or reduction of material reception conditions within the meaning of Article 2(f) and (g) of the directive and, if so, under which conditions such a sanction may be imposed, in particular where it concerns a minor and, specifically, an unaccompanied minor within the meaning of Article 2(d) and (e).

32. In that regard, it must be noted that, as is apparent from the definitions in Article 2(f) and (g) of Directive 2013/33, ‘material reception conditions’ means the full set of measures that Member States, in accordance with the directive, grant to applicants and include housing, food and clothing provided in kind, or as financial allowances or in vouchers, or a combination of the three, and a daily expenses allowance.

33. Under Article 17(1) and (2) of Directive 2013/33, Member States must ensure that material reception conditions are available to applicants when they make their application for international protection and that the measures adopted for those purposes provide an adequate standard of living for applicants, which guarantees their subsistence and protects their physical and mental health.

34. In the specific situation of ‘vulnerable persons’ within the meaning of Article 21 of the directive, which include unaccompanied minors such as Mr Haqbin at the time when he was the subject of the sanction at issue in the main proceedings, the second subparagraph of Article 17(2) of the directive states that Member States must ensure that such a standard of living is ‘met’.

35. However, the requirement for Member States to ensure that material reception conditions are available to applicants is not absolute. The EU legislature laid down, in Article 20 of Directive 2013/33, which is in Chapter III thereof, both of which are entitled ‘Reduction or withdrawal of material reception conditions’, the circumstances in which those conditions may be reduced or withdrawn.

36. As noted by the referring court, the first three paragraphs of that article refer explicitly to ‘material reception conditions’.

37. In that regard, Article 20(1) of the directive provides that Member States may reduce or, in exceptional and duly justified cases, withdraw material reception conditions where an applicant abandons the place of residence determined by the competent authority of the Member State concerned without informing it or without permission, does not comply with reporting duties or with requests to provide information or to appear for personal interviews concerning the asylum procedure, or has lodged a ‘subsequent application’ within the meaning of Article 2(q) of Directive 2013/32.

38. Article 20(2) of Directive 2013/33 states that material reception conditions may be reduced when it is established that the applicant, for no justifiable reason, has not lodged an application for international protection as soon as reasonably practicable after arrival in that Member State.

39. Moreover, as provided in Article 20(3) of Directive 2013/33, Member States may reduce or withdraw material reception conditions where an applicant has concealed financial resources, and has therefore unduly benefited from those conditions.

40. 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.

41. Since the concept of ‘sanction’ referred to, in particular, in Article 20(4) of Directive 2013/33 is not defined in the directive and since the nature of the sanctions that may be imposed on an applicant under that provision is not specified, Member States are given some latitude in determining those sanctions.

42. Since the wording of Article 20(4) of Directive 2013/33 does not in itself settle the questions referred by the referring court, as reworded in paragraph 31 above, it is necessary, for the purpose of interpreting that provision, to have regard to the general scheme and the aim of that directive (see, by analogy, judgment of 16 July 2015, CHEZ Razpredelenie Bulgaria, C-83/14, EU:C:2015:480, paragraph 55 and the case-law cited).

43. In particular, with regard to the question whether a ‘sanction’ within the meaning of Article 20(4) of Directive 2013/33 may relate to ‘material reception conditions’, it is appropriate to note, first, that a measure for reduction or withdrawal of material reception conditions in respect of an applicant on account of serious breaches of the rules of the accommodation centres or seriously violent behaviour constitutes, in the light of the aim and the detrimental consequences thereof for the applicant, a ‘sanction’ in the ordinary meaning of that word and, secondly, that that provision is included in Chapter III of the directive, which is dedicated to the reduction and withdrawal of such conditions. It follows that the sanctions envisaged in the directive may, in principle, concern material reception conditions.

44. It is true that the possibility for Member States to reduce or withdraw, as the case may be, material reception conditions is explicitly provided for only in Article 20(1) to (3) of Directive 2013/33, which, as is apparent from recital 25 of the directive, concerns essentially the possibility of abuse, by applicants, of the reception system established by the directive. However, Article 20(4) of the directive does not explicitly preclude a sanction from concerning material reception conditions. Furthermore, as submitted by the Commission, inter alia, if Member States can adopt measures concerning those conditions in order to protect themselves against the possibility of abuse of the reception system, they must also be able to do so in the event of serious breaches of the rules of the accommodation centres or seriously violent behaviour, since they are capable of disrupting public order and the safety of persons and property.

45. That being said, it should be observed that, in accordance with Article 20(5) of Directive 2013/33, any sanction within the meaning of Article 20(4) thereof must be objective, impartial, reasoned and proportionate to the particular situation of the applicant and must, under all circumstances, ensure access to health care and a dignified standard of living for the applicant.

46. With regard specifically to the requirement to ensure a dignified standard of living, it is apparent from recital 35 of Directive 2013/33 that the directive seeks to ensure full respect for human dignity and to promote the application, inter alia, of Article 1 of the Charter of Fundamental Rights and has to be implemented accordingly. In that regard, respect for human dignity within the meaning of that article requires the person concerned not finding himself or herself in a situation of extreme material poverty that does not allow that person to meet his or her most basic needs such as a place to live, food, clothing and personal hygiene, and that undermines his or her physical or mental health or puts that person in a state of degradation incompatible with human dignity (see, to that effect, judgment of 19 March 2019, Jawo, C-163/17, EU:C:2019:218, paragraph 92 and the case-law cited).

47. 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 the third sentence of 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 as those mentioned in the previous paragraph.

48. Such a sanction would also amount to a failure to comply with the proportionality requirement under the second sentence of 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.

49. That consideration is not called into question by the fact, mentioned by the referring court, that an applicant excluded by way of sanction from an accommodation centre in Belgium is said to be provided, upon the imposition of that sanction, with a list of private centres for the homeless likely to host him or her. Indeed, the competent authorities of a Member State cannot do no more than provide an applicant who is excluded from an accommodation centre following a sanction imposed upon him or her with a list of reception facilities which the applicant might approach in order to benefit from material reception conditions equivalent to those that have been withdrawn from him or her.

50. On the contrary, first, the obligation to ensure a dignified standard of living, provided for in Article 20(5) of Directive 2013/33, requires Member States, by the very fact that the verb ‘ensure’ is used therein, to guarantee such a standard of living continuously and without interruption. Secondly, it is for the authorities of the Member States 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.

51. In the case of a sanction based on a reason set out in Article 20(4) of Directive 2013/33 and consisting in the reduction of material reception conditions, including the withdrawal or reduction of the daily expenses allowance, it is for the competent authorities to ensure under all circumstances that, in accordance with Article 20(5) of the directive, such a sanction, having regard to the particular situation of the applicant as well as all of the circumstances of that case, complies with the principle of proportionality and does not undermine the dignity of the applicant.

52. It should also be made clear 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 within the meaning of Article 18(1)(c) of the directive. 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.

53. Lastly, it is important to note 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 the second sentence of Article 20(5) thereof, of the particular situation of the minor and of the principle of proportionality.

54. Moreover, according to Article 23(1) of Directive 2013/33 the best interests of the child are a primary consideration for Member States when implementing the provisions of the directive that involve minors. Under Article 23(2) of the directive, in assessing those best interests, Member States must in particular take due account of factors such as the minor's well-being and social development, taking into particular consideration the minor's background, such as safety and security considerations. Recital 35 of the directive also underlines that the latter seeks to promote the application, inter alia, of Article 24 of the Charter of Fundamental Rights and has to be implemented accordingly.

55. In that context, beyond the general considerations set out in paragraphs 47 to 52 above, the minor's situation must, under all circumstances, be taken into particular consideration when a sanction is imposed pursuant to Article 20(4) of Directive 2013/33, read in conjunction with Article 20(5) thereof. Furthermore, neither of those provisions precludes 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.

56. In the light of all of the foregoing, the answer to the questions referred is that Article 20(4) and (5) of Directive 2013/33, read in the light of Article 1 of the Charter of Fundamental Rights, must be interpreted 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, within the meaning of Article 2(f) and (g) of the directive, 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 of the Charter of Fundamental Rights, be determined by taking particular account of the best interests of the child.

Costs

57. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Grand Chamber) hereby rules:

[Signatures]