Case C-482/26, Breedsloot – one word that may decide who picks the destination
A single adverb sits in the middle of the Return Directive’s definition of “return”. The Raad van State wants to know whether it governs the destination — because if it does, a large part of the safe-third-country machinery has nothing to operate on.
Facts
X is contesting a decision of the Minister van Asiel en Migratie before the Raad van State (Council of State, Netherlands), the highest administrative court in Dutch migration matters. The point of law it has sent to Luxembourg concerns the definition of “return” in Article 3(3) of Directive 2008/115. That provision describes return as the process of a third-country national going back — whether in voluntary compliance with an obligation to return, or enforced — to the country of origin, to a country of transit, or, in the third indent, to “another third country, to which the third-country national concerned voluntarily decides to return and in which he or she will be accepted”. The referring court asks what work the word “voluntarily” does there, and puts the question in the context of the safe-third-country provisions of the Procedures Directive. (Breedsloot is a fictitious case name assigned under the Court’s anonymisation practice; it does not correspond to any party.)
Questions Referred
According to the Official Journal notice, the Raad van State asks:
Must the word ‘voluntarily’ in the third indent of Article 3(3) of Directive 2008/115/EC, read in the light of the objective of that directive to pursue an effective removal and repatriation policy and in conjunction with Articles 33(2)(c) and 38 of Directive 2013/32/EU, be interpreted as referring to the choice of destination by the third-country national?
Sources
OJ notice C/2026/4172 (EUR‑Lex) · Case file on CURIA · Directive 2008/115/EC · Directive 2013/32/EU
Comment
The question is one sentence long and turns on a redundancy. Article 3(3) has already dealt with willingness in its opening words: return happens “whether in voluntary compliance with an obligation to return, or enforced”. That covers the whole spectrum of the person’s attitude to leaving. So when the third indent adds that the third country must be one to which the person “voluntarily decides to return”, the word cannot sensibly be doing the same job twice. Either it is surplus, or it attaches to something the chapeau did not cover — and the only candidate left is which country. Read that way, the first two indents name destinations the State may choose (origin, transit), and the third names a destination only the individual may choose.
That reading has a sharp edge, which is why the Dutch court pairs the question with the Procedures Directive. Article 33(2)(c) lets a Member State declare an application inadmissible where a non-Member State is a safe third country for the applicant under Article 38; and Article 38(2)(a) requires national rules on “a connection between the applicant and the third country concerned on the basis of which it would be reasonable for that person to go to that country”. A connection making it reasonable is an objective test applied by the authority. Voluntarily decides is consent. If the Return Directive demands the second while the Procedures Directive is satisfied by the first, then a State can lawfully refuse to examine an application because a safe third country exists — and then find it has no lawful way to send the person there, because removal to a country the person did not choose is not “return” at all. Inadmissibility would survive; enforcement would not.
The Court has already treated the destination as a substantive part of a return decision rather than an implementation detail. In Joined Cases C‑924/19 PPU and C‑925/19 PPU, FMS (ECLI:EU:C:2020:367) it held that where an administrative authority amends the country of destination stated in an earlier return decision, that amendment is itself a return decision, and Article 13 read with Article 47 of the Charter requires it to be open to judicial review. A country of destination that can be changed only under judicial supervision is not a matter of mere logistics. The same judgment, together with Case C‑564/18, LH (ECLI:EU:C:2020:218), also shows how narrowly the Court polices Article 33(2): both struck down the Hungarian ground of inadmissibility based on mere transit through a country where the applicant faced no persecution. Member States have not been given latitude to widen the safe-third-country concept by reinterpretation.
Against that, the referring court’s own framing supplies the counter-argument: the directive’s objective is “an effective removal and repatriation policy”. A consent requirement over destination would let any individual veto the only available route out by declining to pick it, which sits badly with a directive built to make removal work. The Court will have to choose between a reading that makes the word meaningful and a reading that keeps the system operable — and it is not obvious it can have both. Whatever it decides will land immediately on every Member State now building return arrangements with third countries, which is why a one-sentence question from The Hague is worth more attention than its length suggests.