Opinion of the Advocate General — ECLI:EU:C:2014:2031
Date: 2014-06-25
Language of the case: French
Subject matter: Immigration and asylum policy;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: France

Summary of amendments presented by the Praesidium (Charte 4284/00 CONVENT 37). 9 – See point 33 of this Opinion. 10 – See judgment in N., C‑604/12, EU:C:2014:302, paragraphs 49 and 50. 11 – See observations of the French Government in point 33 of this Opinion. 12 – Idem. 13 – Judgment in Sopropé, C‑349/07, EU:C:2008:746, paragraph 36. 14 – See point 41 of this Opinion. 15 – See Articles 3(4) and 6(1) of Directive 2008/115. 16 – One cannot but be surprised by the absence of such a specific procedure in Directive 2008/115 given the major impact that a return decision can have on the life of a human being, when such a procedure was devised to ensure observance of the right to be heard in matters of customs and competition law! See, concerning customs duties, Article 22(6) of Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (OJ 2013 L 269, p. 1 and corrigendum OJ 2013 L 287, p. 90), and my Opinion in Kamino International Logistics and Datema Hellman Worldwide Logistics, C‑129/13 and C‑130/13, EU:C:2014:94, points 51 to 57. Concerning competition law, Article 27(1) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [81 EC] and [82 EC] (OJ 2003 L 1, p. 1) provides that ‘[b]efore taking decisions as provided for in Articles 7, 8, 23 and Article 24(2), the Commission shall give the undertakings or associations of undertakings which are the subject of the proceedings conducted by the Commission the opportunity of being heard on the matters to which the Commission has taken objection. The Commission shall base its decisions only on objections on which the parties concerned have been able to comment. Complainants shall be associated closely with the proceedings’. My emphasis. 17 – The first subparagraph of Article 12(1) of Directive 2008/115 provides that ‘[r]eturn decisions … shall be issued in writing and give reasons in fact and in law as well as information about available legal remedies’. 18 – See judgment in M, EU:C:2012:744, paragraph 86. 19 – See judgment in G and R, C‑383/13 PPU, EU:C:2013:533, paragraph 35. The obligation of the Member States to observe the principle of effectiveness is reaffirmed by the second subparagraph of Article 19(1) TEU, which states that they ‘shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law’. 20 – Judgment in M, EU:C:2012:744, paragraph 88 and case-law cited. 21 – See, to this effect, judgments in Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 101, and Schwarz, C‑291/12, EU:C:2013:670, paragraph 34. 22 – See judgment in Dokter and Others, C‑28/05, EU:C:2006:408, paragraph 75. See also G. and R., EU:C:2013:533, paragraph 36, in which the Court ruled that, while the Member States may allow the exercise of the rights of defence of illegally staying third-country nationals under the same rules as those governing internal situations, those rules must comply with EU law and, in particular, must not undermine the effectiveness of Directive 2008/115. 23 – See, to this effect, Opinion of Advocate General Bot in M., C‑277/11, EU:C:2012:253, points 35 and 36. 24 – See judgments in Achughbabian, EU:C:2011:807, paragraph 28, and Sagor, C‑430/11, EU:C:2012:777, paragraph 31. 25 – See, to this effect, judgments in El Dridi, C‑61/11 PPU, EU:C:2011:268, paragraph 35, and Achughbabian, EU:C:2011:807, paragraph 31. 26 – See also the actual definition of a return decision as laid down in Article 3(4) of that directive, which links a declaration of illegal residence with imposition of an obligation to return. 27 – See point 34 of this Opinion. 28 – Idem. 29 – See point 43 of this Opinion. 30 – See point 47 of this Opinion. 31 – Which it is allowed to do under Article 6(6) of Directive 2008/115. 32 – Pursuant to Article 4(3) of Directive 2008/115, the Member States, may, however, adopt or maintain provisions more favourable to the persons to whom the directive applies, provided that those provisions are compatible with the said directive. 33 – See point 22 of this Opinion. 34 – See, by analogy, judgment in M, EU:C:2012:744, paragraph 95. 35 – See point 46 of this Opinion. 36 – See, to this effect, Opinion of Advocate General Kokott in Sabou, C‑276/12, EU:C:2013:370, paragraph 57. 37 – See, also, points 9 and 21 of this Opinion. 38 – I note in this regard that Articles 12 and 13(3) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (OJ 2004 L 304, p. 12, and corrigendum OJ 2005 L 204, p. 24) provide, inter alia, for the person concerned to be personally interviewed on his application in conditions enabling him to explain all the reasons for his application before the adoption of a decision. 39 – See point 13 of this Opinion. 40 – There is no indication in the file before the Court that the provisions of Article 5 of Directive 2008/115 were not observed when the first return decision was issued. 41 – See judgment in Arslan, C‑535/11, EU:C:2013:343, paragraph 57. 42 – See point 42 of this Opinion. 43 – See Article 13 of Directive 2008/115. 44 – Ms Mukarubega brought an action for annulment before the tribunal adminsitratif de Paris against the first return decision on 6 March 2013, that is, therefore, after the adoption of the second return decision. 45 – According to that provision, ‘[p]olice custody is a coercive measure decided upon by a police officer, under the control of the courts, whereby a person reasonably suspected on one or more grounds of committing or attempting to commit an offence punishable by imprisonment is held at the disposal of investigators’. 46 – See, to this effect, recital 6 in the preamble to Directive 2008/115. 47 – See Articles 63-3-1, 63-4, 63-4-1 and 63-4-2 of the French Code of Criminal Procedure on the right of the person held in custody to be assisted by a lawyer and the procedure for and limitations of that right. 48 – See, in particular, Chambre criminelle de la Cour de cassation (Criminal Chamber of the Court of Cassation), appeal of 7 February 2012, No 11-83676, on the annulment of written records of interviews of persons in police custody because the lawyer of the person in police custody never attended. 49 – When she was held in police custody, Ms Mukarubega was informed of her right to be assisted by a lawyer. According to the report of the notification of her placement in police custody, Ms Mukarubega expressed her wish ‘to be assisted by the legal advice office at the bar of Seine-Saint-Denis’ and to be assisted by him at her interviews and confrontations, which was conveyed to the said legal advice office by the police. At the hearing before the Court, Ms Mukarubega’s lawyer stated, without being contradicted in this regard by the agent of the French Government, that ‘for logistical reasons’ related to shortage of personnel at the bar of Saint-Seine-Denis, no lawyer attended the interview of 4 March 2013. 50 – See Article 13(1) of Directive 2008/115, which provides for more diverse remedies. 51 – See my View in G and R, EU:C:2013:553, point 47, and my Opinion in Kamino International Logistics and Datema Hellman Worldwide Logistics, EU:C:2014:94, point 69. 52 – See my View in G and R, EU:C:2013:553, points 47 and 48. 53 – See point 66 of this Opinion. 54 – See, by analogy, my Opinion in Kamino International Logistics and Datema Hellman Worldwide Logistics, EU:C:2014:94, point 72.