The Hague District Court of the Netherlands on Friday called on the Court of Justice of the European Union (CJEU) to give a preliminary ruling on questions regarding the extension of the Temporary Protection Directive (TPD) under Article 267 of the Treaty on the Functioning of the European Union (TFEU). TPD entitles the CJEU the jurisdiction to give preliminary rulings concerning the interpretation of treaties as well as the validity and interpretation of acts of EU institutions.

In response to the refugee flows resulting from the conflict in the former Yugoslavia at the end of the last century, the EU Council adopted TPD on July 20, 2001, to establish minimum standards for granting temporary protection in the event of a mass influx of displaced persons from third countries who cannot return to their country of origin. This emergency mechanism will be activated in exceptional circumstances to prevent member states’ asylum systems from becoming overloaded by mass simultaneous asylum applications. The Netherlands implemented TPD into national law on December 16, 2004.

As a result of the armed conflicts that broke out in Ukraine in 2022, there was a mass displacement of Ukrainians into the EU. This displacement triggered the temporary protection mechanism on March 4, 2022, and it was automatically extended by one year. To provide stability and prospects for Ukrainian refugees, the Council decided in 2023 to extend the temporary protection for people fleeing from Russia’s war of aggression against Ukraine from March 4, 2024, to March 4, 2025.

In Friday’s case, a Nigerian man fled to the Netherlands as a third-country national when war broke out in Ukraine, and he already belonged to the group to which TPD applied. However, the Netherlands’ secretary of state followed a former ruling to decide in February that the plaintiff’s lawful residence ended by operation of law on March 4, 2024, thereby giving the plaintiff four weeks to leave the territory of the EU.

The plaintiff argued that the return decision, based on an incorrect interpretation of TPD, was unlawful since the temporary protection of third-country nationals will continue until March 4, 2025. The plaintiff also stated that he falls under the extension of temporary protection through the 2023 Extension Decree.

The court first overruled the secretary of state’s view that the plaintiff’s appeal is inadmissible. As to whether the return decision is premature, the court concluded that the secretary of state was not authorized to make the return decision on February 7, 2024, due to the plaintiff’s lawful residence at that time. The court also found sufficient reasons to assume that a correct interpretation of EU law enables the plaintiff to fall within the scope of the Extension Decree and that he is therefore entitled to temporary protection until March 4, 2025.

Nevertheless, the court admitted that the answer to these legal issues was questionable. Therefore, it asked the CJEU to give a preliminary ruling on the following three questions:

• Must Article 6 of the Return Directive be interpreted as precluding a return decision from being issued on a date on which an alien is still lawfully residing in the territory of a member state?
• Does it matter for the answer to the previous question whether the return decision includes a date on which lawful residence ends, that date is in the near future and, moreover, the legal consequences of the return decision only occur at that later time?
• Should Article 1 of the Extension Decree be interpreted as meaning that this extension also concerns a group of third-country nationals who have already been brought under the scope of the Temporary Protection Directive by a member state via the optional provision of Article 2(3) of the Implementation Decree, even if the member state has subsequently chosen to no longer offer temporary protection to that group of third-country nationals?

According to the decision, the court will reserve any further decision until the final judgment on the appeal.