# C_2023216EN.01001002.xml

| 19.6.2023 | EN | Official Journal of the European Union | C 216/10 |
| --- | --- | --- | --- |

19.6.2023

EN

Official Journal of the European Union

C 216/10

---

Judgment of the Court (Fourth Chamber) of 27 April 2023 (request for a preliminary ruling from the Fővárosi Törvényszék — Hungary) — M.D. v Országos Idegenrendészeti Főigazgatóság Budapesti és Pest Megyei Regionális Igazgatósága

(Case C-528/21, (1) M.D. (Ban on Entering Hungary))

(Reference for a preliminary ruling - Immigration policy - Article 20 TFEU - Genuine enjoyment of the substance of the rights which flow from the status of EU citizenship - Article 47 of the Charter of Fundamental Rights of the European Union - Directive 2008/115/EC - Common standards and procedures in Member States for returning illegally staying third-country nationals - Articles 5, 11 and 13 - Direct effect - Right to an effective judicial remedy - Decision banning entry and stay adopted in respect of a third-country national, a family member of a minor EU citizen - Threat to national security - Failure to take into account the individual situation of that third-country national - Refusal to comply with a court decision suspending the effects of that prohibition decision - Consequences)

(2023/C 216/13)

Language of the case: Hungarian

Referring court

Fővárosi Törvényszék

Parties to the main proceedings

Applicant: M.D.

Defendant: Országos Idegenrendészeti Főigazgatóság Budapesti és Pest Megyei Regionális Igazgatósága

Operative part of the judgment

| 1. | Article 20 TFEU
  must be interpreted as precluding a Member State from adopting a decision banning entry into the territory of the European Union in respect of a third-country national, who is a family member of a Union citizen, a national of that Member State who has never exercised his or her right to free movement, without having examined beforehand whether there is, between those persons, a relationship of dependency which would de facto compel that Union citizen to leave the territory of the European Union altogether in order to go with that family member and, if so, whether the grounds on which that decision was adopted allow a derogation from the derived right of residence of that third-country national. |
| --- | --- |

1.

Article 20 TFEU

must be interpreted as precluding a Member State from adopting a decision banning entry into the territory of the European Union in respect of a third-country national, who is a family member of a Union citizen, a national of that Member State who has never exercised his or her right to free movement, without having examined beforehand whether there is, between those persons, a relationship of dependency which would de facto compel that Union citizen to leave the territory of the European Union altogether in order to go with that family member and, if so, whether the grounds on which that decision was adopted allow a derogation from the derived right of residence of that third-country national.

| 2. | Article 5 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 precluding that a third-country national, who should have been the addressee of a return decision, is the subject — in a direct extension of the decision which withdrew from him or her, for reasons connected with national security, his or her right of residence on the territory of the Member State concerned — of a decision banning entry into the territory of the European Union, adopted for identical reasons, without consideration being given, beforehand, to his or her state of health and, where appropriate, his or her family life and the best interests of his or her minor child. |
| --- | --- |

2.

Article 5 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 precluding that a third-country national, who should have been the addressee of a return decision, is the subject — in a direct extension of the decision which withdrew from him or her, for reasons connected with national security, his or her right of residence on the territory of the Member State concerned — of a decision banning entry into the territory of the European Union, adopted for identical reasons, without consideration being given, beforehand, to his or her state of health and, where appropriate, his or her family life and the best interests of his or her minor child.

| 3. | Article 5 of Directive 2008/115
  must be interpreted as meaning that, where a national court is seised of an action against an entry ban decision adopted pursuant to national legislation which is incompatible with that Article 5 and which cannot be interpreted consistently with it, that court must disapply that legislation to the extent that it does not comply with that article and, where necessary to ensure the full effectiveness of Article 5, apply that article directly in the dispute before it. |
| --- | --- |

3.

Article 5 of Directive 2008/115

must be interpreted as meaning that, where a national court is seised of an action against an entry ban decision adopted pursuant to national legislation which is incompatible with that Article 5 and which cannot be interpreted consistently with it, that court must disapply that legislation to the extent that it does not comply with that article and, where necessary to ensure the full effectiveness of Article 5, apply that article directly in the dispute before it.

| 4. | Article 13 of Directive 2008/115, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union,
  must be interpreted as precluding a national practice by which the administrative authorities of a Member State refuse to apply a final court decision ordering the suspension of enforcement of an entry ban decision on the ground that that decision had already been the object of an alert in the Schengen Information System. |
| --- | --- |

4.

Article 13 of Directive 2008/115, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union,

must be interpreted as precluding a national practice by which the administrative authorities of a Member State refuse to apply a final court decision ordering the suspension of enforcement of an entry ban decision on the ground that that decision had already been the object of an alert in the Schengen Information System.

---

(1)  OJ C 431, 25.10.2021.

---