Case C-835/26, Vluchtelingenwerk Vlaanderen – a medical test, by force, before removal
Belgium has legislated for removals that cannot go ahead in a pandemic because the destination country or the airline requires a medical test that the returnee refuses. Its Constitutional Court doubts that EU law allows what it did.
Facts
The Law of 12 May 2024 on the proactive return policy inserted Article 74/23 into the Belgian aliens law of 15 December 1980. It allows foreign nationals to be made to undergo a compulsory medical examination, if necessary by force, in order to enforce a return measure, where the country of destination or transit or the carrier requires such an examination, in the context of a public health emergency of international concern declared by the World Health Organisation. The Ligue des droits humains and seven other associations, among them Vluchtelingenwerk Vlaanderen, Caritas International and Médecins du Monde, challenged the law. By judgment No 89/2026 of 16 July 2026 the Cour constitutionnelle annulled several other provisions. On the medical examination it found that the measure may affect dignity and interferes with physical integrity, that it may be imposed systematically, against the person’s will and for non-therapeutic purposes, without the authorities having to consider alternatives, and that the Court of Justice does not appear to have ruled on the question. It referred two questions.
Questions Referred
1. Must Article 8 of Directive 2008/115 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, read where appropriate in conjunction with Articles 1, 3, 4, 7 and 35 of the Charter of Fundamental Rights of the European Union, be interpreted as precluding national measures such as that provided for in Article 74/23 of the Law of 15 December 1980 on access to the territory, residence, establishment and removal of foreign nationals, inserted by the Law of 12 May 2024 amending the Law of 15 December 1980 on access to the territory, residence, establishment and removal of foreign nationals and the Law of 12 January 2007 on the reception of asylum seekers and certain other categories of foreign nationals on the proactive return policy, which provides for the possibility of making foreign nationals undergo a compulsory medical examination, if necessary by force, in order to enforce a return measure, provided that that examination is imposed as a condition of entry or transit by the country of destination or transit, or as a condition of travel by the carrier responsible for the transport of the foreign national, in the context of a public health emergency of international concern declared by the World Health Organisation?
2. Must Articles 1, 3, 4, 7 and 35 of the Charter be interpreted as precluding national measures such as that provided for in Article 74/23 of the abovementioned Law of 15 December 1980, inserted by the abovementioned Law of 12 May 2024, which provides for the possibility of making foreign nationals undergo a compulsory medical examination, if necessary by force, in order to enforce a return measure, provided that that examination is imposed as a condition of entry or transit by the country of destination or transit, or as a condition of travel by the carrier responsible for the transport of the foreign national, in the context of a public health emergency of international concern declared by the World Health Organisation?
Sources
OJ notice C/2026/5614 (EUR‑Lex) · Case file on CURIA · Cour constitutionnelle, judgment No 89/2026 · Directive 2008/115/EC
Comment
Article 8 of the Return Directive gives Member States wide powers and one firm limit. They “shall take all necessary measures to enforce the return decision”, but where they use coercive measures, “as a last resort”, against a person who resists removal, those measures “shall be proportionate and shall not exceed reasonable force” and must respect fundamental rights and “the dignity and physical integrity” of the person concerned. The Directive says nothing about medical examinations. The argument for the Belgian rule is that a test demanded by the destination State or the airline is simply one of the “necessary measures”. The argument against it is that taking a sample by force is a different kind of measure from escorting someone onto a plane.
The Cour constitutionnelle’s own analysis points to where the difficulty lies. Article 8(4) frames coercion as a last resort against resistance; Article 74/23, as the Court read it, can be applied systematically, against the person’s will and without any duty to consider alternatives. Under the Charter, the examination engages Article 3 on physical integrity, which requires free and informed consent in medicine, and Article 1 on dignity. One possible answer is not a flat prohibition but conditions: an individual assessment, the least invasive test available, and force only where nothing else will do. Whether Article 74/23 can be read to meet them is for the Belgian court once Luxembourg has answered.