X, a Turkish national, requested international protection in the Netherlands on 10 April 2022. On 21 September 2022, the State Secretary for Justice and Security decided to extend by nine months the 6 months’ time limit provided by Dutch law for the examination of applications for international protection. On 13 October 2022, X served a notice of default on the State Secretary for failure to take a decision within the 6 months’ time limit, and in the absence of a reply, the applicant brought an action before the District Court of the Hague.

The District Court of the Hague declared the action well founded on 6 January 2023. It held that the State Secretary for Justice and Security unlawfully extended the time limit for the examination of applications for international protection and ordered it to carry out an interview within 8 weeks of the judgment and to decide on the application within 8 weeks of the interview, under a penalty payment of EUR 100 per day of delay.

The State Secretary for Justice and Security appealed the judgment before the Council of State, arguing that the time limit for deciding on an application for international protection may be extended not only due to a sudden increase in applications but also for a gradual increase in applications in combination with other circumstances, such as the backlog of cases, where such an extension is necessary to ensure an adequate and complete examination of asylum applications.

The Council of State decided to stay the proceedings and refer several questions to the CJEU for a preliminary ruling.

The Council asked whether Article 31(3)(b) of the recast Asylum Procedures Directive (APD) must be interpreted as meaning that the 6 months’ time limit for the examination of applications for international protection, may be extended by 9 months by the determining authority if there is a gradual increase in applications over an extended period or whether the period during which there is an increase must be limited in time.

The CJEU noted that in order to extend the 6 months time limit, Member States must comply with three closely linked and cumulative conditions: “(i) the applications for international protection must be lodged ‘simultaneously’, (ii) those applications must be lodged by ‘a large number’ of third-country nationals or stateless persons, and (iii) it must then be ‘very difficult in practice to conclude the procedure within the six-month time limit.”

Regarding the first condition, the CJEU noted that the large number of applications for international protection must be lodged, as argued by the Advocate General, ‘within a short period’, meaning that the situation will not cover the case of a gradual increase in applications over a prolonged period.

Regarding the second condition, the CJEU noted, as the Advocate General, that in order to determine whether there is a ‘large number’ of applicants, reference must be made to the usual and foreseeable flow of applications, based on current and historical statistical trends.

Regarding the third condition, the CJEU noted that the existence of practical difficulties must be assessed in the light of Member States’ obligations under Article 4(1) of the recast APD (designating a responsible determining authority for all procedures to appropriately examine applications in accordance with the recast APD and ensuring that such authority has appropriate means, including sufficient competent personnel, to carry out its tasks in accordance with the recast APD).

The CJEU noted that if the number of applications for international protection increases gradually over an extended period of time, the determining authority must adapt its capacity to process those applications and the extension of the time limit cannot exceed the time needed to increase the means available to the determining authority (to recruit and train competent personnel) and to have sufficient capacity to resume processing, without prejudice to an adequate and complete examination of those applications.

The third question referred by the Dutch Council of State concerned whether the difficulty of concluding the examination of asylum applications within the 6 months’ time limit may result from circumstances other than a large number of applications lodged simultaneously, such as a significant backlog or insufficient personnel.

The CJEU observed that the wording Article 31(3)(b) of the recast APD points to practical difficulties in processing applications due to the large number of third-country nationals or stateless persons who have simultaneously applied for international protection, and that, under the recast APD, Member States must ensure that the determining authority has the appropriate processing capacity to deal with fluctuations in the number of applications, where the numbers follow a normal and foreseeable trend. The court added that where the number of applications remains continuously high over an extended period, the respective Member State must provide the determining authority with appropriate means to ensure sufficient processing capacity.

Thus, the CJEU (Fifth Chamber) ruled that under Article 31(3)(b) of the recast Asylum Procedures Directive, the 6 months’ time limit for the examination of applications for international protection, may be extended by 9 months by the determining authority due to a significant increase in the number of applications, within a short period, and not when there is a gradual increase in applications over an extended period; other circumstances such as a significant backlog of applications or insufficient personnel at the determining authority cannot justify such an extension.