Information;Order — ECLI:EU:C:2024:810
Date: 2024-09-26
Language of the case: French
Court formation: Ninth Chamber
Subject matter: Asylum policy;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Belgium

Anonymised version 
Translation C-143/24 – 1 
Case C-143/24 [Bandundu – II] i 
Request for a preliminary ruling 
Date lodged: 
23 February 2024 
Referring court: 
Tribunal de première instance de Liège (Belgium) 
Date of the decision to refer: 
16 February 2024 
Applicant: 
PL 
Defendant: 
Belgian State 
  
Tribunal de première instance de Liège 
(Court of First Instance, Liège) – Liège Division  
Judgment 
… 
In Case: 
[PL], born in Kinshasa (Congo) … 
Applicant … 
v 
 
i The name of the present case is a fictitious name. It does not correspond to any party to the proceedings. 
EN 
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BELGIAN STATE … 
Defendant … 
PROCEDURE 
1 … 
2 … 
3 … 
4 … 
5 … 
6 … 
7 … [procedure and reference to inadmissibility orders C-56/22 and C-203/23 based 
on Article 94 of the Rules of Procedure] 
RELEVANT FACTS RELATING TO THE CASE SUBMITTED TO THE 
COURT 
8 On 12 October 2010, [PL] lodged an application for asylum in Belgium. On 4 July 
2012, the Commissaire général aux réfugiés et aux apatrides (Commissioner-
General for Refugees and Stateless Persons) rejected her application. By an action 
lodged on 6 August 2012, proceedings against that decision were brought before 
the Conseil du Contentieux des Étrangers (CCE) (Council for asylum and 
immigration proceedings, ‘the CCE’) which upheld the decision by judgment of 
31 December 2012. 
9 On 8 December 2012, [PL] applied for a right to stay for humanitarian reasons on 
[the] basis of Article 9(a) of the Loi du 15 décembre 1980 sur l’accès au territoire, 
le séjour, l’établissement et l’éloignement des étrangers (Belgian Law of 
15 December 1980 on the entry, residence, establishment and removal of foreign 
nationals) (‘the Law on foreign nationals’ or ‘the Law of 15 December 1980’), 
relying, in essence, on the length of her asylum procedure and of her stay, 
employment and enduring local roots. 
10 By decision of 18 March 2013, the État belge (Belgian State) declared the 
application to be inadmissible on the ground that none of the facts relied on by 
[PL] constituted an exceptional circumstance within the meaning of Article 9a of 
the Law on foreign nationals, since the application had to be made from the 
country of origin and not from Belgium. 
BANDUNDU – II 
 
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11 By an action of 29 May 2013, proceedings were brought against that decision 
before the CCE. That action was dismissed by judgment No 225.526 of 
2 September 2019. In that judgment, the CCE holds in particular that ‘under 
Article 9a of the Law of 15 December 1980, the application for a residence 
authorisation must be submitted at a Belgian diplomatic or consular post in the 
country of origin or in the country where the foreign national is permitted to 
reside, unless exceptional circumstances prevent that procedure. Those 
exceptional circumstances, which are not legally defined, are not circumstances of 
force majeure. Therefore, it is for the authority to assess, in each individual case, 
the exceptional nature of the circumstances alleged by the foreign national … In 
the present case, the statement of reasons for the contested decision shows that the 
defendant addressed, in a detailed manner, the main facts raised in the 
applicant’s residence application, explaining why it considered that those facts 
did not constitute exceptional circumstances within the meaning stated above.’ 
12 On 19 September 2019, [PL] lodged an appeal on a point of law before the 
Conseil d’État (Council of State) against the aforementioned judgment; that 
appeal was declared admissible, then dismissed on the merits, notwithstanding the 
opinion of the auditorat (investigatory authority), by judgment No 250.863 of 
10 June 2021. 
13 In its opinion, the auditorat suggested that the following question be referred to 
the Court of Justice of the European Union: 
… [wording of the question, reiterated in the operative part] 
14 In its judgment, the Conseil d’État considers, in particular, that: 
‘The applicant wrongly maintains that Article 9a of the Law of 15 December 
1980 falls within the powers reserved to the Member States by Article [6(4)] 
of [Directive 2008/115] … The aim of that directive … is, in fact, defined by 
Article 1 thereof, which provides that: ‘This Directive sets out common 
standards and procedures to be applied in Member States for returning 
illegally staying third-country nationals, in accordance with fundamental 
rights as general principles of Community law as well as international law, 
including refugee protection and human rights obligations’. That directive 
therefore governs the return of third-country nationals staying illegally and 
not the conditions for granting a residence permit. The sole purpose of 
Article [6(4)] of Directive 2008/115/EC is to derogate from the obligation 
imposed on Member States by Article [6(1)] of that directive to issue a 
return decision to any third-country national staying illegally on their 
territory if a Member State decides to grant a residence permit to that third-
country national. Mere implementation of that provision when a Member 
State grants a residence permit does not consist in the grant of that permit 
but in the abstention from issuing a return decision and in the withdrawal or 
suspension of a return decision which has already been issued. The Member 
States do not grant a residence permit under Article [6(4)] of 
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Directive 2008/115/EC. They make use, pursuant to that provision, of the 
power to derogate from their obligation under Article [6(1)] of the directive, 
to impose a return on a third-country national who is staying illegally. 
Article 9a of the Law of 15 December 1980 … therefore does not fall within 
the implementation of Article [6(4)] of Directive 2008/115/EC … Finally, 
there is no need for the question for a preliminary ruling to be referred to 
the Court of Justice of the European Union, as requested by the applicant, 
because Directive 2008/115/CE does not govern the conditions or procedure 
for applying for a residence permit. Since that is so evident as to leave no 
reasonable room for doubt, the Conseil d’État is not required to refer a 
question to the Court of Justice of the European Union for a preliminary 
ruling’. 
SUBJECT-MATTER OF THE CASE SUBMITTED TO THE COURT 
15 By an action brought on 26 July 2021, [PL] instituted proceedings against the 
Belgian State before the civil court, putting in issue its liability, including that of 
its administrative courts, inter alia, for having infringed EU law in the residence 
application procedure [initiated] on the basis of Article 9a of the Belgian Law of 
15 December 1980 and for not having referred to the Court of Justice of the 
European Union the question requested at last instance before the Belgian Conseil 
d’État. 
16 In the light of the principles laid down in Directive 2008/115/EC, [PL] is 
uncertain as to the objective criteria applied by the Belgian State supporting a 
finding of exceptional circumstances authorising [the initiation in Belgium] of the 
residence regularisation procedure laid down in Article 9a of the Belgian Law of 
15 December 1980 … . 
17 The aim of the proceedings brought before the court is, in short, to determine 
whether the Belgian State, in particular through its administrative courts, 
committed a wrongful act causing the damage relied on by [PL], consisting in the 
impossibility of making an effective application for regularisation, since the 
Belgian authorities refused to communicate the positive objective criteria enabling 
recourse to Article 9a of the Law of 15 December 1980. She claims that the 
refusal of residence unjustified by any legal and public criterion infringes respect 
for one’s private life[, which leads] to harmful discrimination in employment, 
housing, access to health care, access to education and access to the courts. 
NATIONAL LEGAL FRAMEWORK IN WHICH THE CASE 
SUBMITTED TO THE COURT OPERATES 
18 …  
– … [basis in the legislation and case-law of the civil liability action 
against the State] 
BANDUNDU – II 
 
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19 … 
20 Article 9a … of the Law [on foreign nationals] … is included in the following 
chapter of the Law: 
‘CHAPTER III. – RESIDENCE FOR MORE THAN THREE MONTHS 
Article 9. In order to be able to reside in the Kingdom beyond the term 
fixed in Article 6, a foreign national who is not covered by one of the cases 
provided for in Article 10 must be authorised by the Minister or his 
representative. 
Save for exceptions provided for by international treaty, a law or royal 
decree, the foreign national must request that authorisation from the 
competent diplomatic mission or Belgian consul in his place of residence 
or stay abroad. 
Article 9a.(1) In exceptional circumstances, and provided that the foreign 
national is in possession of an identity document, the foreign national may 
request that authorisation from the mayor of the municipality where he is 
residing, who will forward it to the Minister or his representative. Where the 
Minister or his representative grants the residence authorisation, it will be 
issued in Belgium. 
… 
(2) Without prejudice to the other elements of the request, the following 
cannot be considered as exceptional circumstances and are declared 
inadmissible: 
1. elements that have already been invoked to support an asylum 
application …; 
2. elements that should have been invoked during the procedure for 
processing the asylum application …; 
3. elements that have already been invoked in a previous application for 
a residence permit in Belgium …; 
4. elements that have been invoked in the context of an application for a 
residence permit on the basis of Article 9b. 
… 
Article 9b.(1). A foreign national residing in Belgium who can prove his 
identity in accordance with paragraph 2 and who suffers from an illness 
occasioning a genuine risk to his life or physical integrity or a genuine risk 
of inhuman or degrading treatment where there is no appropriate treatment 
in his country of origin or in the country in which he resides may apply to 
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the Minister or his representative for leave to reside in the Kingdom of 
Belgium …. 
…’ 
21 According to the correlation table which the Belgian State sent to the European 
Commission in 2012, Articles 9a and 9b of the Law of [15 December 1980] … 
amount to a transposition of Article [6(4)] of Directive 2008/115/EC 
(DOC 53 1825/002, page 38). 
EU PROVISIONS AT ISSUE 
22 Directive 2008/115/EC of the Parliament and of the Council [of 16 December 
2008] on common standards and procedures in Member States for returning 
illegally staying third-country nationals … OJ 2008 L 348, p. 98] provides: 
‘Article 1: Subject matter 
This Directive sets out common standards and procedures to be applied in 
Member States for returning illegally staying third-country nationals, in 
accordance with fundamental rights as general principles of Community law 
as well as international law, including refugee protection and human rights 
obligations. 
… 
[CHAPTER II] 
TERMINATION OF ILLEGAL STAY 
Article 6 Return decision 
1. Member States shall issue a return decision to any third-country 
national staying illegally on their territory, without prejudice to the 
exceptions referred to in paragraphs 2 to 5. 
… 
4. Member States may at any moment decide to grant an autonomous 
residence permit or other authorisation offering a right to stay for 
compassionate, humanitarian or other reasons to a third-country national 
staying illegally on their territory. In that event no return decision shall be 
issued. Where a return decision has already been issued, it shall be 
withdrawn or suspended for the duration of validity of the residence 
permit or other authorisation offering a right to stay. 
…’ 
BANDUNDU – II 
 
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[recital 6]: «’Member States should ensure that the ending of illegal stay of 
third-country nationals is carried out through a fair and transparent 
procedure. According to general principles of EU law, decisions taken 
under this Directive should be adopted on a case-by-case basis and based 
on objective criteria, implying that consideration should go beyond the mere 
fact of an illegal stay. When using standard forms for decisions related to 
return, namely return decisions and, if issued, entry-ban decisions and 
decisions on removal, Member States should respect that principle and fully 
comply with all applicable provisions of this Directive’. 
STATEMENT OF THE REASONS LEADING THE COURT TO INQUIRE 
ABOUT THE INTERPRETATION OF DIRECTIVE 2008/115/EC: LINK 
EXISTING BETWEEN THAT DIRECTIVE AND THE NATIONAL 
LEGISLATION APPLICABLE TO THE DISPUTE 
23 [PL] puts in issue the liability of the Belgian State and [of] its administrative 
courts. The Belgian State, for having rejected the arguments relied on in support 
of its application for residence for humanitarian reasons, on the ground that the 
circumstances are not exceptional within the meaning of Article 9a of the Belgian 
Law of 15 December 1980 …, without stating those which are … or relying on 
objective legal criteria. The administrative courts, essentially the Conseil d’État, 
for having held that 9a of the Law on foreign nationals does not fall within the 
implementation of Article [6(4)] of Directive 2008/115/EC and for having refused 
to refer a question for a preliminary ruling to the Court of Justice of the European 
Union owing to the evident nature of that finding, whereas the auditorat suggested 
that the question should be referred. 
24 The Belgian State disputes any liability, relying on the position of the Conseil 
d’État … and maintains that that it has a broad discretion in the exercise of the 
power conferred on it by Article 9a of the Belgian Law of 15 December 1980 … . 
25 In order to assess whether the Belgian State has incurred liability, the following 
questions must be resolved: 
1. whether EU law, and more specifically Article [6(4)] of Directive 
2008/115/EC, governs applications for a right to stay for humanitarian 
reasons based on Article 9a of the Belgian Law of 15 December 1980 …; 
2. if so, whether the principle stated in [recital 6] of the directive, 
providing for an examination on a case-by-case basis and based on objective 
criteria, applies to decisions taken on the basis of Article [6(4)] of 
Directive 2008/115/EC. 
26 The reason [for the need] for an answer to those questions is the refusal of the 
Belgian State and of the Belgian Conseil d’État to consider that Article [6(4)] of 
Directive 2008/115/EC governs applications for a right to stay for humanitarian 
reasons based on Article 9a of the Belgian Law on foreign nationals [, which has] 
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the consequence that the State can refuse an application for a right to stay for 
humanitarian reasons without having to rely on any legally objective criterion. 
27 However, a link between Directive 2008/115/EC and Article 9a of the Belgian 
Law of 15 December 1980 … is apparent: 
– from the correlation table between … the Belgian Law of 15 December 
1980 … (DOC 53 1825/002, page 38):  
‘Directive 2008/115: Article 6(4)  
Law of 15 December 1980 / Other law or legislation: Article 9a and 
9b of the Law of 15 December 1980.  
…’; 
– from a letter addressed this 12 December 2023 by the Commission to a 
Belgian lawyer asking about Belgium’s transposition of the Return 
Directive: ‘… Please note that, according to the correlation table 
between Directive 2008/115/EC and the national transposition 
measures which the Belgian State sent to us in 2012, Articles 9a and 
9b of the Law of 15 December 1980 amount to the transposition of 
Article [6(4)] of Directive 2008/115/EC. …’ 
28 The indication of Article 9a in the correlation table communicated to the 
Commission as being the transposition of Article [6(4)] would appear to reflect 
the compliance by the Belgian State with its obligations under Article 20 of 
Directive 2008/115/EC. 
29 If it were to be held by the Court of Justice of the European Union that Article 
[6(4)] of Directive 2008/115/EC governs applications for a right to stay for 
humanitarian reasons made on the basis of Article 9a of the Belgian Law of 
15 December 1980 …, [it would also need to be verified] whether the principle 
stated in [recital 6] of the directive, requiring an individual examination on the 
basis of objective criteria, also governs the examination of those applications. 
30 If that were to be the case, the Belgian State may incur liability for the failure of 
Article 9a of the Belgian Law of 15 December [1980] … to provide for such 
criteria and for the failure of its decisions taken in respect of [PL] to refer to them. 
ASSESSMENT OF THE COURT (based on that of the Auditor of the 
Belgian Conseil d’État) 
31 Article [6(4)] of Directive 2008/115/EC, cited above, provides for an exception to 
the obligation of the Member States to issue a return decision to third-country 
nationals staying illegally, by providing that no return decision can be issued 
where a Member State decides, in its absolute discretion, to grant an autonomous 
residence permit to such a national for compassionate or humanitarian reasons. 
BANDUNDU – II 
 
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32 Article 9a of the Belgian Law of 15 December 1980 is a provision which: 
– states the conditions under which a residence permit of more than three 
months may be requested on Belgian territory, by way of exception to 
the rule laid down in Article 9 of the Law that such a request must be 
made from the competent diplomatic mission or Belgian consul in his 
place of residence or stay abroad; 
– where those conditions for admissibility are satisfied, confers 
entitlement to a right of residence of more than three months, in 
particular for compassionate, humanitarian or other reasons, on a third-
country national staying illegally on the territory, as provided for in 
Article [6(4) of Directive 2008/115 cited above. 
33 Therefore, Article 9a of the Belgian Law of 15 December 1980 appears to fall 
within the power conferred on Member States to decide to grant an autonomous 
residence permit for humanitarian reasons[,] which the correlation table sent to the 
Commission accepts. 
34 Consequently, it could be accepted that, regardless of the fact that the aim of 
Directive 2008/115 [is not] to govern the conditions for residence on the territory 
of a Member State of third-country nationals staying illegally, Article 9a of the 
Law of 15 December 1980 would constitute an application of that directive (in 
Article [6(4)] thereof) and that the principles governing that directive would also 
apply to decisions based on that provision. 
35 Since Directive 2008/115/EC authorises a non-return decision, the principles 
governing it must also seemingly apply to the [initiated] non-return procedure. 
36 Consequently, [recital] 6 of that directive, according to which decisions taken 
under the directive should be adopted on a case-by-case basis and based on 
objective criteria, appears to be applicable to an inadmissibility decision taken on 
the basis of Article 9a of the Belgian Law of 15 December 1980, as well as 
[recital] 24, according to which the directive respects the fundamental rights and 
observes the principles recognised in particular by the Charter of Fundamental 
Rights of the European Union. 
… [legal basis of the proceedings before the Court] 
37 … 
38 The court considers that a decision by the Court of Justice of the European Union 
is necessary to enable it to give judgment on the putting in issue of the civil 
liability of the Belgian State … by [PL] for non-compliance with Directive 
2008/115/EC in the proceedings brought unsuccessfully by her on the basis of 
Article 9a of the Belgian Law of 15 December 1980 … The state of the 
proceedings does not permit it to give final judgment. It is necessary to stay the 
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proceedings and to refer the question proposed by [PL] to the Court of Justice of 
the European Union for a preliminary ruling. 
DECISION: QUESTION FOR A PRELIMINARY RULING 
39 … 
Refers the following question to the Court of Justice of the European Union …: 
‘Does EU law, essentially the provisions of the Charter of Fundamental 
Rights of the European Union and of Directive 2008/115/EC, apply to a 
practice of a Member State allowing it to regularise in situ a foreign national 
staying there illegally? If it does, must Articles 5, 6 and 13 of Directive 
2008/115/EC, read in accordance with [recitals 6 and 24] thereof, and 
Articles 1, 7, 14, 20, 21, 24 and 47 of the Charter of Fundamental Rights of 
the European Union be interpreted as meaning that, where a Member State is 
considering granting an autonomous residence permit or other authorisation 
offering a right to stay for compassionate, humanitarian or other reasons to a 
third-country national staying illegally on its territory, it is entitled to: (i) 
require that national, first of all, to prove that it is impossible to make his or 
her application in his or her country of origin; and (ii) not set out in its 
legislation the, a fortiori objective, conditions and criteria for proving those 
compassionate, humanitarian or other reasons (whether as far as 
admissibility is concerned, by requiring that exceptional circumstances be 
demonstrated but not defining them, or as far as substance is concerned, by 
failing to lay down any objective criteria for defining the, inter alia 
humanitarian, reasons justifying a residence authorisation), thereby 
rendering the response to such an application unpredictable, or even 
arbitrary? If it is permissible for those criteria not to be laid down by 
legislation, in the event of a refusal, is the right to an effective remedy not 
undermined by the fact that the only remedy provided is based on strict 
legality, excluding any considerations of appropriateness?’ 
…