# C_2017382EN.01002001.xml

| 13.11.2017 | EN | Official Journal of the European Union | C 382/20 |
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13.11.2017

EN

Official Journal of the European Union

C 382/20

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Judgment of the Court (First Chamber) of 14 September 2017 (request for a preliminary ruling from the Dioikitiko Protodikeio Thessalonikis — Greece) — Ovidiu-Mihăiţă Petrea v Ypourgos Esoterikon kai Dioikitikis Anasygrotisis

(Case C-184/16) (1)

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((Reference for a preliminary ruling - Directive 2004/38/EC - Directive 2008/115/EC - Right to move and reside freely in the territory of the Member States - Residence of a national of a Member State within the territory of another Member State despite a prohibition on entering that State - Lawfulness of a decision to withdraw a registration certificate and a further expulsion decision - Possibility to rely, exceptionally, on the unlawfulness of an earlier decision - Translation obligation))

(2017/C 382/23)

Language of the case: Greek

Referring court

Referring court

Dioikitiko Protodikeio Thessalonikis

Parties to the main proceedings

Parties to the main proceedings

Applicant: Ovidiu-Mihăiţă Petrea

Applicant:

Defendant: Ypourgos Esoterikon kai Dioikitikis Anasygrotisis

Defendant:

Operative part of the judgment

Operative part of the judgment

| 1. | Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC and the protection of legitimate expectations do not preclude a Member State from, first, withdrawing a registration certificate wrongly issued to an EU citizen who was still subject to an exclusion order, and, secondly, adopting a removal order against him based on the sole finding that the exclusion order was still valid. |
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1.

Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC and the protection of legitimate expectations do not preclude a Member State from, first, withdrawing a registration certificate wrongly issued to an EU citizen who was still subject to an exclusion order, and, secondly, adopting a removal order against him based on the sole finding that the exclusion order was still valid.

| 2. | Directive 2004/38 and 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 do not preclude a decision to return an EU citizen, such as that at issue in the main proceedings, from being adopted by the same authorities and according to the same procedure as a decision to return a third-country national staying illegally referred to in Article 6(1) of Directive 2008/115, provided that the transposition measures of Directive 2004/38 which are more favourable to that EU citizen are applied. |
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2.

Directive 2004/38 and 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 do not preclude a decision to return an EU citizen, such as that at issue in the main proceedings, from being adopted by the same authorities and according to the same procedure as a decision to return a third-country national staying illegally referred to in Article 6(1) of Directive 2008/115, provided that the transposition measures of Directive 2004/38 which are more favourable to that EU citizen are applied.

| 3. | The principle of effectiveness does not preclude a legal practice according to which a national of a Member State who is subject to a return order in circumstances such as those at issue in the main proceedings may not rely, in support of an action against that order, on the unlawfulness of the exclusion order previously adopted against him, in so far as the person concerned had effectively the possibility to contest that latter order in good time in the light of the provisions of Directive 2004/38. |
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3.

The principle of effectiveness does not preclude a legal practice according to which a national of a Member State who is subject to a return order in circumstances such as those at issue in the main proceedings may not rely, in support of an action against that order, on the unlawfulness of the exclusion order previously adopted against him, in so far as the person concerned had effectively the possibility to contest that latter order in good time in the light of the provisions of Directive 2004/38.

| 4. | Article 30 of Directive 2004/38 requires the Member States to take every appropriate measure with a view to ensuring that the person concerned understands the content and implications of a decision adopted under Article 27(1) of that directive but that it does not require that decision to be notified to him in a language he understands or which it is reasonable to assume he understands, although he did not bring an application to that effect. |
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4.

Article 30 of Directive 2004/38 requires the Member States to take every appropriate measure with a view to ensuring that the person concerned understands the content and implications of a decision adopted under Article 27(1) of that directive but that it does not require that decision to be notified to him in a language he understands or which it is reasonable to assume he understands, although he did not bring an application to that effect.

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(1)  OJ C 211, 13.6.2016.

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