Opinion of the Advocate General — ECLI:EU:C:2025:751
Date: 2025-10-02
Language of the case: German

summary of the Ad Hoc Query cited in footnote 3 to the present Opinion, available at: https://emnbelgium.be/publication/ad-hoc-query-return-decisions-and-entry-bans. 24 Emphasis added. 25 Regulation of the European Parliament and of the Council of 28 November 2018 on the establishment, operation and use of the Schengen Information System (SIS) in the field of border checks, and amending the Convention implementing the Schengen Agreement, and amending and repealing Regulation (EC) No 1987/2006 (OJ 2018 L 312, p. 14). See Article 39 of that regulation. On expiry of the review period provided for therein and in the absence of any clarification from the Member State concerned as to the extension of the alerts, they are to be deleted automatically. 26 I refer to the expression ‘is generally to be issued with an entry ban of indefinite duration’ used by the referring court in its question referred for a preliminary ruling (emphasis added), which is similar to that in the first sentence of Paragraph 11(5b) of the AufenthG: ‘a ban on entry and residence of indefinite duration must, in principle, be imposed’ (emphasis added). Both the referring court and the German Government explained at the hearing that, under administrative law, if the circumstances referred to in the first sentence of Paragraph 58a(1) of the AufenthG are met, the competent authority is obliged to issue an entry ban of indefinite duration. The basic rule may be departed from only in exceptional and atypical circumstances. 27 See judgment of 27 April 2023, M.D. (Ban on entering Hungary) (C‑528/21, EU:C:2023:341, paragraphs 89 and 91). 28 See, to that effect, judgment of 27 April 2023, M.D. (Ban on entering Hungary) (C‑528/21, EU:C:2023:341, paragraph 92, second indent). See also the annex to the Commission Recommendation cited in footnote 23 to the present Opinion, in particular pp. 126 and 127. 29 According to the settled case-law of the Court, the mere fact that a national measure has been taken for the purpose of protecting national security, which remains the sole responsibility of each Member State, under Article 4(2) TEU, cannot render EU law inapplicable and exempt the Member States from their obligation to comply with that law. See judgment of 6 October 2020, Privacy International (C‑623/17, EU:C:2020:790, paragraph 44 and the case-law cited). 30 On the value of considering, in the light of the aim and the general scheme of Directive 2008/115, that that directive applies to an entry ban decision since, under that directive, the Member States are subject to substantive and procedural safeguards for the protection of the fundamental rights of third-country nationals, see judgment of 27 April 2023, M.D. (Ban on entering Hungary) (C‑528/21, EU:C:2023:341, paragraphs 77, 83 and 84). In my view, the intention of the EU legislature in that regard must be emphasised, since the case of a serious threat to national security is specifically referred to in Directive 2008/115, in the second sentence of Article 11(2). 31 See, in that regard, Article 12(1) of Directive 2008/115. See also, on the requirements relating to the proportionality of the measure, points 39 to 41 of the present Opinion on the case-law of the ECtHR. 32 See Article 13 of Directive 2008/115. See also, by way of comparison in relation to the right to an effective remedy and the examination of the proportionality of the measure at issue, Articles 30 and 31 of Directive 2004/38 and Article 24(4) of Regulation 2018/1861. See also judgment of 4 October 2012, Byankov (C‑249/11, EU:C:2012:608, paragraphs 37, 40 to 42, 44 and 79). See, lastly, on the relevance of the comparison with Directive 2004/38 when Member States exercise the option of drawing inspiration from the provisions of Directive 2008/115 to designate the competent authorities and to define the procedure applicable to the adoption of a decision ordering the return of an EU citizen, if that is not precluded by any provisions of EU law, judgment of 14 September 2017, Petrea (C‑184/16, EU:C:2017:684, paragraph 52). 33 See Article 32 of Directive 2004/38, entitled ‘Duration of exclusion orders’, paragraph 1 of which provides that ‘persons excluded on grounds of public policy or public security may submit an application for lifting of the exclusion order after a reasonable period, depending on the circumstances, and in any event after three years from enforcement of the final exclusion order’. 34 The obligation to review, laid down in Article 39 of that regulation, is correlated with the absence of a fixed time limit in the event of an alert for refusal of entry or stay being entered. 35 Signed in Rome on 4 November 1950. 36 See judgment of the ECtHR of 18 October 2006, Ünerv. the Netherlands (CE:ECHR:2006:1018JUD004641099, § 54 and the case-law cited). 37 See judgment of the ECtHR of 18 October 2006, Üner v. the Netherlands (CE:ECHR:2006:1018JUD004641099, §§ 57 to 60 and the case-law cited). 38 See, inter alia, judgment of the ECtHR of 30 November 2021, Avci v. Denmark (CE:ECHR:2021:1130JUD004024019, § 37 and the case-law cited). See, in particular, on the risk that the person concerned would continue to commit offences, § 30 of that judgment. 39 See, inter alia, judgment of the ECtHR of 30 November 2021, Avci v. Denmark (CE:ECHR:2021:1130JUD004024019, § 38 and the case-law cited). 40 See, in particular, with regard to a permanent re-entry ban imposed on a third-country national who had lawfully spent most of his youth since the age of three in Denmark, the analysis of the ECtHR in the judgment of 5 September 2023, Al-Masudi v. Denmark (CE:ECHR:2023:0905JUD003574021, §§ 25 to 35). 41 See, inter alia, judgment of 5 September 2023, Al-Masudi v. Denmark (CE:ECHR:2023:0905JUD003574021, §§ 33 and 34). 42 See, with regard to the same German legislation as that examined by the Court of Justice in the judgment in Filev and Osmani, judgment of the ECtHR of 25 March 2010, Mutlag v. Germany (CE:ECHR:2010:0325JUD004060105, § 61 and the case-law cited). 43 See judgments of the ECtHR of 7 February 2017, K2 v. United Kingdom, (CE:ECHR:2017:0207DEC004238713, § 66); of 1 February 2022, Johansen v. Denmark (CE:ECHR:2022:0201DEC002780119, §§ 80 to 84); and of 22 March 2022, Laraba v. Denmark (CE:ECHR:2022:0322DEC002678119, §§ 31 to 34). In the cases which gave rise to those judgments, the entry bans were linked to the deprivation of citizenship of the dual nationals concerned. In the latter two judgments, the ECtHR sets out in detail the balancing of the various interests involved by the national authorities. 44 See, on the purely theoretical nature of the prospect of return, in the case of an entry ban limited in time, judgments of the ECtHR of 12 November 2024, Sharafane v. Denmark (CE:ECHR:2024:1112JUD000519923, § 72), and of 12 November 2024, Al-Habeeb v. Denmark (CE:ECHR:2024:1112JUD001417123, § 71). See also, in the case of a ban of unlimited duration, judgment of the ECtHR of 28 June 2007, Kaya v. Germany (CE:ECHR:2007:0628JUD003175302, § 69). See, with regard to the possibility of returning to the territory of the State concerned for a short period, at least for family reasons, inter alia, judgment of the ECtHR of 15 July 2025, Miari v. Denmark (CE:ECHR:2025:0715JUD000285224, § 45 and the case-law cited). 45 See point 13 of the present Opinion. 46 See Paragraph 11(5a) and (5b) of the AufenthG, which gives the competent authorities, in the event of a terrorist threat, a margin of discretion in determining the length of the entry ban (20 years or unlimited), depending on the circumstances. 47 See Paragraph 11(5a), third and fourth sentences, of the AufenthG, cited in point 9 of the present Opinion. 48 See, by way of comparison, Article 32 of Directive 2004/38.