Opinion of the Advocate General — ECLI:EU:C:2014:2032
Date: 2014-06-25
Language of the case: French
Subject matter: Immigration and asylum policy;Area of freedom, security and justice;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: France

Summary of amendments presented by the Praesidium (Charte 4284/00 CONVENT 37. 20 – See point 26 of this Opinion. 21 – See judgment in N., C‑604/12, EU:C:2014:302, paragraphs 49 and 50. 22 – See observations of the French Government in point 26 of this Opinion. 23 – Idem. 24 – Judgment in Sopropé, EU:C:2008:746, paragraph 36. 25 – See Articles 3(4) and 6(1) of Directive 2008/115. 26 – 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), which 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. 27 – 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’. 28 – See judgment in M., EU:C:2012:744, paragraph 86. 29 – 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’. 30 – Judgment in M., EU:C:2012:744, paragraph 88 and the case-law cited. 31 – 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. 32 – 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. 33 – See, to this effect, Opinion of Advocate General Bot in M., EU:C:2012:253, points 35 and 36. 34 – See point 58 of this Opinion. 35 – See Articles 12(1) of Directive 2008/115 and 41(2)(c) of the Charter. 36 – See, by analogy, judgment in Solvay v Commission, C‑455/11 P, EU:C:2013:796, paragraph 89 and the case-law cited. 37 – Recital 4 in the preamble to Directive 2008/115. (My emphasis). 38 – 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. In fact, Directive 2008/115 concerns only the return of illegally staying third-country nationals and is thus not designed to harmonise in their entirety the rules of the Member States on the stay of foreign nationals. See judgments in Achughbabian, EU:C:2011:807, paragraph 28, and Sagor, C‑430/11, EU:C:2012:777, paragraph 31. 39 – See point 52 of this Opinion. 40 – See, by analogy, judgment in M., EU:C:2012:744, paragraphs 60 and 61. 41 – See point 71 of this Opinion. 42 – Where appropriate, return-related decisions referred to in Article 12(1) of Directive 2008/115, namely, entry-ban decisions and decisions on removal. 43 – It must be emphasised that Mr Boudjlida was not subject to criminal proceedings in the main proceedings and was not in police custody or deprived of his liberty during his hearing by the police. It should be noted that, under Article 3(2)(a) of Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty (OJ 2013 L 294, p. 1), ‘[s]uspects or accused persons shall have access to a lawyer’ ‘before they are questioned by the police’. Under Article 15(1) of Directive 2013/48, Member States must bring into force the laws, regulations and administrative provisions necessary to comply with that directive by 27 November 2016 at the latest. 44 – See Article 13(4) of Directive 2008/115. Under Article 4(3) of Directive 2008/115, Member States may adopt or maintain provisions that are more favourable to the persons concerned, provided that such provisions are compatible with Directive 2008/115. 45 – See point 64 of this Opinion. 46 – See point 61 of this Opinion.