Opinion of the Advocate General — ECLI:EU:C:2017:963
Date: 2017-12-13
Language of the case: Finnish
Subject matter: Asylum policy;Justice and home affairs;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Finland

summary, therefore, I propose the following answer to the first question: A third-country national can rely directly on Article 25(2) of the CISA before national courts in order to contest the legality and the enforcement of a return decision issued against him and of an entry ban within the meaning of Directive 2008/115 imposed on him. VII. Conclusion 95. In light of the foregoing, I propose that the Court’s answer to the request for a preliminary ruling from the Korkein hallinto-oikeus (Supreme Administrative Court, Finland) on interpretation of the Convention implementing the Schengen Agreement signed on 19 June 1990 should be as follows: (1) A third-country national can rely directly on Article 25(2) of the Convention implementing the Schengen Agreement before national courts in order to contest the legality and the enforcement of a return decision issued against him and of an entry ban within the meaning of Directive 2008/115/EC imposed on him. (2) Article 25(2) of the Convention implementing the Schengen Agreement is to be interpreted as meaning that the consultations prescribed in that provision should, as EU law currently stands, take place as soon as possible, but do not have to begin before a decision to return a person and impose an entry ban has been made. (3) The return decision may be enforced and the entry ban put into effect only after the State consulted under Article 25(2) of the Convention implementing the Schengen Agreement has presented its observations or has failed to do so although a reasonable period for response has passed. Both decisions may be enforced even before expiry of such period if the third-country national presents a threat to public safety and order. 1 Original language: German. 2 See in that regard Article 3(2) TEU and Article 67(2) TFEU, as well as Protocol No 19 to the TEU and to the TFEU (Protocol on the Schengen acquis integrated into the framework of the European Union, OJ 2008 C 115, p. 290; this protocol dates back to the Treaty of Amsterdam). 3 Regarding the latter aspect, see judgments of 5 June 2014, Mahdi (C‑146/14 PPU, EU:C:2014:1320, paragraph 46); of 5 November 2014, Mukarubega (C‑166/13, EU:C:2014:2336, paragraph 39); and of 11 June 2015, Zh. and O. (C‑554/13, EU:C:2015:377, paragraph 38). 4 OJ 2000 L 239, p. 19. 5 OJ 2008 L 348, p. 98. 6 Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ 2016 L 77, p. 1). 7 Regulation 2016/399 repealed and replaced the previous version of the Schengen Borders Code set out in Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 (OJ 2006 L 105, p. 1). The relevant provisions in the present case are in substance unchanged, however, and in the following I therefore refer exclusively to the version of the Schengen Borders Code currently in force. 8 The Kingdom of Belgium, the Federal Republic of Germany, the French Republic, the Grand Duchy of Luxembourg and the Kingdom of the Netherlands. 9 Additionally, Council Decision 1999/436/EC of 20 May 1999 (OJ 1999 L 176, p. 17) determined the legal basis, in conformity with the various founding treaties of the European Union, of the individual provisions which constitute the Schengen acquis; pursuant to Annex A to that decision, Article 25 of the Convention Implementing the Schengen Agreement falls within the scope of Article 62 point 3 and Article 63 point 3 EC (now Articles 77 and 79 TFEU). 10 See in this regard the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis, which was signed in Luxembourg on 26 October 2004 and entered into force on 1 March 2008 (OJ 2008 L 53, p. 52), (the ‘Swiss Schengen Association Agreement’). 11 The appellant was in possession of and sold, inter alia, at least 850 ecstasy tablets, imported 438 g of cocaine into Finland for the purpose of sale or delivery, and attempted to obtain at least 30 g of cocaine for the purpose of sale. 12 The judgment at first instance was delivered on 5 April 2016. 13 Regarding Switzerland’s right to participate in the preliminary ruling proceedings, see Article 8(2) of the Swiss Schengen Association Agreement in conjunction with the fourth paragraph of Article 23 of the Statute of the Court of Justice of the European Union. 14 The Immigration Office and the Spanish Government representative gave consistent statements to this effect to the Court. 15 See, to that effect, judgment of 20 January 2005, García Blanco (C‑225/02, EU:C:2005:34), and orders of 3 March 2016, Euro Bank (C‑537/15, EU:C:2016:143), and of 23 March 2016, Overseas Financial and Oaktree Finance (C‑319/15, EU:C:2016:268). 16 I assume that this finding of a threat to public safety and order was made in accordance with the standards applicable under EU law and is in particular founded on a careful prognosis carried out a on a case-by-case basis which takes into account not just the criminal offences committed by the individual concerned in the past, but also primarily the genuine and present threat posed by that individual which ultimately proved the deciding factor; see judgment of 11 June 2015, Zh. and O. (C‑554/13, EU:C:2015:377, in particular paragraphs 50 to 52 and 54). 17 Article 26(2) of the Proposal for a regulation of the European Parliament and of the Council on the establishment, operation and use of the Schengen Information System (SIS) in the field of border checks, amending Regulation (EU) No 515/2014 and repealing Regulation (EC) No 1987/2006, presented by the Commission on 21 December 2016, COM(2016) 882 final. 18 See on that point recital 4 of Directive 2008/115 and judgments of 5 November 2014, Mukarubega (C‑166/13, EU:C:2014:2336, paragraph 39); of 23 April 2015, Zaizoune (C‑38/14, EU:C:2015:260, paragraph 34); and of 26 July 2017, Ouhrami (C‑225/16, EU:C:2017:590, paragraph. 51). 19 As shown by the second sentence of Article 26(2) of Proposal COM(2016) 882 final (cited in footnote 17), prior consultation in the Schengen area is quite conceivable. 20 In this connection the referring court — presumably relying on the wording of the relevant provisions of national law — uses the term ‘deportation’. In the absence of any indications to the contrary, however, I assume that this refers simply to a return decision within the meaning of Directive 2008/115, and will therefore use the term familiar from the directive. 21 See in that regard points 43 to 48 of this Opinion, above. 22 Judgment of 26 July 2017, Ouhrami (C‑225/16, EU:C:2017:590, paragraph 45 to 53, in particular paragraphs 45 and 53). 23 In this regard, see point 58 of this Opinion, above. 24 Regarding the third-country national’s entitlement to a fair and transparent procedure, see recital 6 of Directive 2008/115 and judgments of 5 June 2014, Mahdi (C‑146/14 PPU, EU:C:2014:1320, paragraph 40), and of 5 November 2014, Mukarubega (C‑166/13, EU:C:2014:2336, paragraph 61). 25 See again in this regard recital 4 of Directive 2008/115 and judgments of 5 November 2014, Mukarubega (C‑166/13, EU:C:2014:2336, paragraph 39); of 23 April 2015, Zaizoune (C‑38/14, EU:C:2015:260, paragraph 34); and of 26 July 2017, Ouhrami (C‑225/16, EU:C:2017:590, paragraph 51). 26 Regarding the principle of sincere cooperation between Member States generally, see judgments of 22 March 1983, Commission v France (42/82, EU:C:1983:88, paragraph 36); of 27 September 1988, Matteucci (235/87, EU:C:1988:460, paragraph 19); and of 11 June 1991, Athanasopoulos and Others (C‑251/89, EU:C:1991:242, paragraph 57). Recently, the Court has stressed the importance of sincere cooperation between Member States in connection with the area of freedom, security and justice, firstly as regards the Schengen area (judgment of 31 January 2006, Commission v Spain, C‑503/03, EU:C:2006:74, paragraph 56), and secondly with a view to the processing of applications for international protection (judgment of 26 July 2017, Jafari, C‑646/16, EU:C:2017:586, end of paragraph 88). 27 See point 4.5.1 of the Sirene Manual, reproduced in the Annex to Commission Implementing Decision 2013/115/EU of 26 February 2013 (OJ 2013 L 71, p. 1). 28 Taking the periods provided for in Directive 2008/115 as guidance would appear all the more justified because, as is clear from Article 21 of that directive, it replaces certain provisions of the Convention implementing the Schengen Agreement. 29 Regarding the last aspect, see in particular Article 12 of Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents (OJ 2004 L 16, p. 44). 30 Such as certain time limits for response applicable under the ‘Dublin III’ system, which play a role in the pending X case (joined cases C‑47/17 and C‑48/17); see Article 22(1) and (6) and Article 25 of Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (OJ 2013 L 180, p. 31). 31 The Commission takes an even stricter line in the second sentence of Article 26(2) of its proposal COM(2016) 882 final (cited in footnote 17), where it considers the extremely short period of seven days to be appropriate. 32 Regarding individual areas of law in which the Union legislator has given effect to the failure by a public authority to respond, see my Opinion in Housieaux (C‑186/04, EU:C:2005:70, paragraph 35). 33 See in this regard point 6 of Article 3 of Directive 2008/115, which provides that an entry ban within the meaning of that Directive prohibits entry into the territory of the Member States; see also recital 14 of that Directive, which affirms that the effects of national return measures should be given a European dimension by establishing an entry ban prohibiting entry into and stay on the territory of all Member States. 34 See in this regard point 59 of this Opinion, above. 35 Accordingly, in cases of this kind, the second sentence of Article 6(2) of Directive 2008/115 does not impose any obligation to permit travel to the Member State which issued the residence permit to the third-country national concerned; instead, it refers directly to the rule in Article 6(1) which provides that the third-country national must be returned to his home country. 36 When the request for a preliminary ruling was lodged, the consultations under Article 25(2) of the Convention implementing the Schengen Agreement had already been pending for over two years, during which time the Kingdom of Spain had not presented any definitive observations. 37 See in this regard Protocol No 19 to TEU and to the TFEU. 38 See in this regard the third sentence of Article 34(2)(b) TEU as amended in the version of the Treaty of Amsterdam. 39 On the contrary, it is recognised that provisions of the Convention implementing the Schengen Agreement may, before domestic courts, supplant national law or practices (see the leading judgment of 11 February 2003, Gözütok and Brügge, C‑187/01 and C‑385/01, EU:C:2003:87, particularly the end of paragraph 33, in relation to Article 54 of the Convention implementing the Schengen Agreement). 40 In accordance with established case-law, these can include agreements to which the EU itself is not party; see in particular judgments of 12 December 1972, International Fruit Company and Others (21/72 to 24/72, EU:C:1972:115, paragraph 18), and of 21 December 2011, Air Transport Association of America and Others (C‑366/10, EU:C:2011:864, paragraph 62). 41 Judgments of 30 September 1987, Demirel (12/86, EU:C:1987:400, paragraph 14), and of 21 December 2011, Air Transport Association of America and Others (C‑366/10, EU:C:2011:864, paragraphs 54 and 55); the judgment of 5 February 1963, van Gend & Loos (26/62, EU:C:1963:1, p. 13) is also fundamental in this connection. 42 Judgment of 22 May 1980, Santillo (131/79, EU:C:1980:131, paragraph 13); similar judgments of 26 February 1986, Marshall (152/84, EU:C:1986:84, paragraph 55), and of 2 August 1993, Marshall (C‑271/91, EU:C:1993:335, paragraph 37), and Opinion of Advocate General Van Gerven in Banks (C‑128/92, EU:C:1993:860, paragraph 27, final subparagraph). 43 Judgments of 5 February 1963, van Gend & Loos (26/62, EU:C:1963:1, p. 13), and of 8 April 1976, Defrenne (43/75, EU:C:1976:56, paragraphs 30 to 37). 44 Judgment of 26 July 2017, Mengesteab (C‑670/16, EU:C:2017:587, in particular paragraph 56); to the same effect, judgment of 25 October 2017, Shiri (C‑201/16, EU:C:2017:805, in particular paragraphs 39 and 44). 45 See in particular points 61 to 80 of this Opinion, above. 46 The Belgian Government also argued in favour of the direct application of Article 25(2) of the Convention implementing the Schengen Agreement to the extent that this enables the third-country national concerned to have an alert for the purposes of refusing entry in the Schengen Information System against him deleted.