# C_2016296EN.01001101.xml

| 16.8.2016 | EN | Official Journal of the European Union | C 296/11 |
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16.8.2016

EN

Official Journal of the European Union

C 296/11

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Judgment of the Court (Grand Chamber) of 7 June 2016 (request for a preliminary ruling from the Cour de cassation — France) — Sélina Affum v Préfet du Pas-de-Calais, Procureur général de la cour d’appel de Douai

(Case C-47/15) (1)

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((Reference for a preliminary ruling - Area of freedom, security and justice - Directive 2008/115/EC - Common standards and procedures for returning illegally staying third-country nationals - Police custody - National legislation providing for a sentence of imprisonment in the event of illegal entry - Situation of ‘transit’ - Multilateral readmission arrangement))

(2016/C 296/15)

Language of the case: French

Referring court

Referring court

Cour de cassation

Parties to the main proceedings

Parties to the main proceedings

Appellant: Sélina Affum

Appellant:

Respondents: Préfet du Pas-de-Calais, Procureur général de la cour d’appel de Douai

Respondents:

Operative part of the judgment

Operative part of the judgment

| 1. | Article 2(1) and Article 3(2) 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 meaning that a third-country national is staying illegally on the territory of a Member State and therefore falls within the scope of that directive when, without fulfilling the conditions for entry, stay or residence, he passes in transit through that Member State as a passenger on a bus from another Member State forming part of the Schengen area and bound for a third Member State outside that area. |
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1.

Article 2(1) and Article 3(2) 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 meaning that a third-country national is staying illegally on the territory of a Member State and therefore falls within the scope of that directive when, without fulfilling the conditions for entry, stay or residence, he passes in transit through that Member State as a passenger on a bus from another Member State forming part of the Schengen area and bound for a third Member State outside that area.

| 2. | Directive 2008/115 must be interpreted as precluding legislation of a Member State which permits a third country national in respect of whom the return procedure established by that directive has not yet been completed to be imprisoned merely on account of illegal entry across an internal border, resulting in an illegal stay.
  That interpretation also applies where the national concerned may be taken back by another Member State pursuant to an agreement or arrangement within the meaning of Article 6(3) of the directive. |
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2.

Directive 2008/115 must be interpreted as precluding legislation of a Member State which permits a third country national in respect of whom the return procedure established by that directive has not yet been completed to be imprisoned merely on account of illegal entry across an internal border, resulting in an illegal stay.

That interpretation also applies where the national concerned may be taken back by another Member State pursuant to an agreement or arrangement within the meaning of Article 6(3) of the directive.

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(1)  OJ C 118, 13.4.2015.

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