CJEU - Joined Cases C‑473/13 and C‑514/13 Adala Bero v Regierungspräsidium Kassel and Ettayebi Bouzalmate v Kreisverwaltung Kleve

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Country of Applicant: 
Date of Decision: 
Joined Cases C‑473/13 and C‑514/13
Court Name: 
Grand Chamber

A member state cannot rely on the fact that there are no specialized detention facilities in a part of its territory to justify keeping non-citizens in prison pending their removal.


The two applicants are third-country nationals who after lodging asylum applications, which were subsequently rejected, were detained pending removal in ordinary prisons in Germany due to the lack, in their Land (federated State), of specialised detention facilities for such returnees. Ms Bero, a Syrian national, was detained for nearly a month in Frankfurt prison without being separated from ordinary prisoners. Mr Bouzalmate, a Moroccan national, was detained for three months in a separate area of the prison of the city of Munich.

In each of the respective cases, both the Bundesgerichtshof (Federal Court of Justice) and the Landgericht München I (Regional Court Munich I) referred questions to the CJEU concerning the compatibility of the above detentions with Article 16(1) of the Returns Directive notably:

Does Article 16(1) of [the Returns Directive] also require a Member State to carry out detentions for the purpose of removal as a rule in specialised detention facilities when such facilities exist in only one part of the federal subdivisions of that Member State but not in others? 

Decision & Reasoning: 

Firstly, the court notes that the first sentence of article 16(1) establishes that pre-removal detention is to take place in specialized detention facilities. The use of prisons allowed under the second sentence of article 16(1) represents a derogation from that principle and must be interpreted strictly.

Secondly,  the CJEU notes that Article 16(1) ‘is imposed upon the Member States as such, and not upon the Member States according to their respective administrative or constitutional structures’ [28]. Therefore, if a federated state within a Member State lacks the possibility to detain migrants pending removal in specialised detention facilities, then this ‘cannot amount to sufficient transposition of [the Returns Directive]’ [30]. While this does not mean that every federated state must have specialised facilities, the CJEU requires federated states to enter into agreements to ensure the relocation of migrants to such facilities.


The Court ruled:

Article 16(1) of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 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.

Subsequent Proceedings : 



In the opinion by Advocate General Bot, found here, attention is paid to the derogation in the second sentence of article 16(1) i.e. when Member States can be justified in holding migrants in prison. AG Bot reads this in conjunction with article 18(1) of the  Directive advancing that detention pending removal of foreign nationals in ordinary prisons may only be justified either by an unforeseen and exceptionally large number of foreign nationals to be returned, or by exceptional circumstances of urgency and seriousness in an individual case. In either exception, detainees must be kept separate from ordinary prisoners.

With regards to the question posed, the AG responds that a mere lack of specialised facilities in one part of a Member State’s territory is not sufficiently serious to warrant detention in an ordinary prison, regardless of the federal organisation of that State or the geographical location of the specialised facility. He rejects one argument of the German government that detention in an ordinary prison can constitute a ‘more favourable measure’ and ‘personalised solution’ for the detainee. Another argument concerning the high costs of specialised facilities is also rejected due to the similar costs associated with detaining returnees in prisons separate from criminals in custody.

Case commentary on Bero and Bouzalmate, Izabella Majcher, The EU Returns Directive and the Use of Prisons for Detaining Migrants in Europe, July 2014

Steve Peers, When can irregular migrants be detained in prisons?, May 2014

Case Law Cited: 

CJEU - C-571/10 Servet Kamberaj v Istituto per l’Edilizia sociale della Provincia autonoma di Bolzano (IPES) and Others
Authentic Language: 
Country of preliminary reference: 
National / Other Legislative Provisions: 
Germany - Paragraph 62a(1) of the Law on the residence