Judgment;Summary — ECLI:EU:C:2020:807
Date: 2020-10-08
Language of the case: Spanish
Court formation: Sixth Chamber
Subject matter: Asylum policy;Justice and home affairs;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary C-568/19 — 1 
Case C-568/19 
Summary of the request for a preliminary ruling under Article 98(1) of the 
Rules of Procedure of the Court of Justice 
Date lodged:  
25 July 2019 
Referring court:  
Tribunal Superior de Justicia de Castilla-La Mancha (High Court of 
Justice, Castilla-La Mancha, Spain) 
Date of the decision to refer:  
11 July 2019 
Applicant:  
MO 
Defendant:  
Subdelegación del Gobierno en Toledo 
  
Subject matter of the main proceedings 
Removal of a third-country national from Spanish territory 
Subject matter and legal basis of the request for a preliminary ruling 
Whether an interpretation of the judgment of 23 April 2015 of the Court of Justice 
(C-38/14, Zaizoune) as meaning that the Spanish authorities and courts can 
directly apply Directive 2008/115/EC of the European Parliament and of the 
Council of 16 December 2008 on common standards and procedures in Member 
States for returning illegally staying third-country nationals, to the detriment of a 
third-country national, is compatible with the case-law of the Court of Justice on 
the limits on the direct effect of directives. 
Whether the fact that the Spanish legislation is not in conformity with that 
Directive should be resolved by applying the directive directly to the detriment of 
that national rather than by legislative reform or by the remedies provided by EU 
law whereby a State can be required properly to transpose directives. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-568/19 
 
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The legal basis is Article 267 TFEU. 
The question referred 
Is an interpretation of the judgment of the Court of Justice of 23 April 2015 (Case 
C-38/14, Zaizoune) as meaning the Spanish authorities and courts can directly 
apply Directive 2008/115/EC to the detriment of the third-country national, 
thereby ignoring and disapplying more advantageous national penalty provisions, 
aggravating that national’s liability to a penalty and possibly disregarding the 
principle that criminal penalties must be defined by law, compatible with the case-
law of the Court of Justice on the limits on the direct effect of directives, and 
should the fact that the Spanish legislation is not in conformity with that directive 
be resolved not in that way but by legislative reform or by the remedies provided 
by EU law whereby a State can be required properly to transpose directives.  
Provisions of EU law relied upon 
a. Directive 2008/115/EC of the European Parliament and of the Council of 
16 December 2008 on common standards and procedures in Member States 
for returning illegally staying third-country nationals, Articles 6(1) and 8(1), 
in conjunction with Article 4(2) and (3). 
b. Judgment of 23 April 2015, Zaizoune, C-38/14, EU:C:2015:260, 
paragraph 41 and operative part. 
c. Judgment of 5 April 1979, Ratti, C-148/78, EU:C:1979:110. 
d. Judgment of 26 February 1986, Marshall, C-152/84, EU:C:1986:84. 
e. Judgment of 8 October 1987, Kolpinghuis Nijmegen, C-80/86, 
EU:C:1987:431. 
f. Judgment of 14 July 1994, Faccini Dori v Recreb, C-91/92, EU:C:1994:292. 
g. Judgment of 26 September 1996, Arcaro, C-168/95, EU:C:1996:363. 
h. Judgment of 11 June 1987, Pretore di Salò, C-14/86, EU:C:1987:275. 
i. Judgment of 8 November 2016, Ognyanov, C-554/14, EU:C:2016:835. 
j. Judgment of 5 December 2017, M.A.S and M.B, C-42/17, EU:C:2017:936. 
k. Judgment of 9 December 2003, Commission v Italy, C-129/00, 
EU:C:2003:656. 
SUBDELEGACIÓN DEL GOBIERNO EN TOLEDO 
 
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Provisions of national law relied upon 
a. Basic Law 4/2000 of 11 January 2000 on the rights and freedoms of foreign 
nationals in Spain and their social integration, as amended by Basic Law 
2/2009 of 11 December 2009. 
i. Article 53(1)(a): ‘The following are serious offences: (a) Being 
unlawfully present on Spanish territory, on the ground that the person 
concerned has not obtained an extension of permission to stay or does 
not have a residence permit, or on the ground that the residence permit 
has expired more than three months previously, and that person has not 
applied for renewal of that permit within the period laid down by law.’ 
ii. Article 55(1)(b): ‘The offences described in the previous articles shall 
be punishable in the following terms: … (b) Serious offences: by a fine 
of between EUR 501 and a maximum of EUR 10 000.’ 
iii. Article 57(1): ‘Where an offender is a foreign national and commits 
offences which may be classified as very serious or serious, within the 
meaning of Article 53(1)(a), (b), (c), (d) and (f) of this law, having 
regard to the principle of proportionality, it is possible to order 
removal from Spanish territory, instead of a fine, following the 
appropriate administrative procedure and by means of a reasoned 
decision which includes an assessment of the facts which constitute the 
offence.’ 
iv. Article 57(3): ‘Under no circumstances may the penalties of removal 
and a fine be imposed concurrently.’ 
v. Article 63bis(2): ‘The decision ordering removal, made under the 
ordinary procedure, will include a voluntary compliance period for the 
person concerned to leave national territory. That period will vary 
between 7 and 30 days and will begin to run when the aforementioned 
decision is served. The period for complying voluntarily with the 
removal order may be extended for an appropriate period having 
regard to the circumstances of each case, for example, the length of 
stay, the existence of dependent children attending school and the 
existence of other family and social links.’ 
vi. Article 63(7) (on the priority procedure): ‘In the situations covered by 
this article the removal order will be enforced immediately.’ 
b. Judgment of the Tribunal Supremo (Supreme Court, Spain) No 734 of 
30 May 2019 (ES:TS:2019:1813) and the judgments cited therein, such as 
the following: judgments of 12 June 2018 (ES:TS:2018:2523); of 
4 December 2018 (ES:TS:2018:4270); of 19 December 2018 
(ES:TS:2018:4386), and of 19 December 2018 (ES:TS:2018:4387).  
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-568/19 
 
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b. Brief account of the facts and the main proceedings 
1 On 14 January 2017, administrative removal proceedings were brought against 
MO, a Colombian national, alleging infringement of Article 53(1)(a) of Basic Law 
4/2000 of 11 January 2000 on the rights and freedoms of foreign nationals in 
Spain and their social integration (‘Basic Law 4/2000’). The proceedings were 
heard under the ‘priority’ procedure. 
2 MO lodged written submissions in which she stated that she had entered Spain in 
2009, at the age of 17, with the corresponding visa and with a permit for family 
reunification with her mother. Those two documents were produced as part of 
those written submissions. She also submitted her current passport, a residence 
card in force until 2013 and a 2015 residence registration in the municipality of 
Talavera de la Reina. She also annexed a number of documents relating to her 
employment background, and certain documents to demonstrate her ties to Spain 
and that she had no criminal record and was permanently resident in that 
municipality. She stated that she had attempted to regularise her situation, which 
had not been possible, and that, in accordance with Basic Law 4/2000, she should 
be fined, but not removed, having regard to her ties to Spain and the lack of any 
adverse factors. 
3 On 3 February 2017, the Subdelegado del Gobierno en Toledo (Representative of 
the Spanish State in Toledo) issued a removal order. That order cited 
Article 53(1)(a) of Basic Law 4/2000 and the Court of Justice judgment of 
23 April 2015 (C-38/14, Zaizoune) which held, according to the Representative of 
the Spanish State, that the general rule is that the person concerned will be 
removed, and that a fine cannot therefore be imposed. 
4 MO brought an action against that order before the Juzgado de lo Contencioso-
Administrativo (Administrative Court, Spain), claiming that the removal penalty 
was disproportionate because, according to Spanish legislation, merely staying 
illegally, where the person has ties to Spain, should give rise only to the 
imposition of a fine. 
5 The Juzgado de lo Contencioso-Administrativo (Administrative Court) dismissed 
the appeal. It took the view that MO’s arguments were unfounded in the light of 
the Court of Justice judgment of 23 April 2015 (C-38/14, Zaizoune), applied to the 
legislation to which the main proceedings relate. According to that judgment, 
‘Directive 2008/115/EC of the European Parliament and of the Council of 
16 December 2008 on common standards and procedures in Member States for 
returning illegally staying third-country nationals, in particular, Articles 6(1) 
and … 8(1), read in conjunction with Article 4(2) and (3), must be interpreted as 
precluding legislation of a Member State such as that at issue in the main 
proceedings, which provides, in the event of third-country nationals illegally 
staying in the territory of that Member State, depending on the circumstances, for 
either a fine or removal, since the two measures are mutually exclusive.’ 
SUBDELEGACIÓN DEL GOBIERNO EN TOLEDO 
 
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6 MO brought an appeal against that judgment of the Juzgado de lo Contencioso-
Administrativo (Administrative Court) before the Tribunal Superior de Justicia de 
Castilla-La Mancha (High Court of Justice, Castilla-La Mancha, Spain), the 
referring court, which entertains doubts as to the consequences that the 
aforementioned judgment of the Court of Justice has for the Spanish 
administrative authorities and courts as regards the direct effect of directives. The 
referring court therefore stayed the proceedings and made the present request for a 
preliminary ruling to the Court of Justice. 
Fundamental arguments of the parties in the main proceedings 
7 MO submits that the penalty of removal is disproportionate because she has strong 
ties to Spain. She gives details of and submits documents that demonstrate her 
employment, economic, social and family ties. She argues that the Tribunal 
Supremo (Supreme Court) has permitted removal instead of a fine only where 
there are circumstances in addition to a mere illegal stay (such as, for example, 
amongst other aggravating factors, where the person concerned has no documents 
and it is not known when and where he or she entered national territory), but that 
she is not in that situation, since she does have documents and is fully settled in 
Spain. MO applies for the penalty of removal to be annulled or, in the alternative, 
replaced by a fine. 
8 The Subdelegación del Gobierno en Toledo (Representation of the Spanish State 
in Toledo) claims that MO has no permit to reside in Spain because her permit has 
expired. It states that, since the Court of Justice judgment of 23 April 2015 
(C-38/14, Zaizoune), only the penalty of removal can be applied in such cases, not 
that of a fine. It also questions MO’s ties with Spain, since there is no evidence of 
any current job or economic capability or existing family ties based on 
dependence. 
Brief account of the grounds for the request for a preliminary ruling 
9 The referring court states that, under Article 53(1)(a) of Basic Law 4/2000, 
illegally staying is an administrative offence which the State punishes by means of 
administrative proceedings enjoying the safeguards inherent in public criminal or 
punitive law and giving rise to the imposition of administrative penalties. As 
originally worded, that law penalised illegal staying with a fine only. The reform 
enacted by Basic Law 8/2000 included removal as an alternative to a fine, but 
gave no specific guidance in terms of choosing one penalty or the other. 
Furthermore, Basic Law 4/2000 establishes two procedures for carrying out 
removal: the ordinary procedure (see Article 63bis(2) and the priority procedure 
(see Article 63(7)). 
10 In that situation, the Tribunal Supremo (Supreme Court) had established 
consistent case-law according to which the principles of administrative law 
required that, where the more serious penalty (removal) was chosen, reasons had 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-568/19 
 
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to be stated based on an negative factor in addition to the mere illegal stay (for 
example, the commission of a criminal offence, lack of identity documents or the 
use of false documents), since if none of those factors were present there would be 
no valid ground for not imposing the more common penalty laid down, the fine. 
For a period, that criterion for selecting the appropriate penalty was, therefore, the 
result of interpretation by the courts. 
11 However, Basic Law 2/2009 gave that interpretation statutory status when it 
worded the new Article 57 to state that ‘having regard to the principle of 
proportionality, it is possible to order removal from Spanish territory, instead of a 
fine, following the appropriate administrative procedure and by means of a 
reasoned decision which includes an assessment of the facts which constitute the 
offence.’ 
12 The referring court recalls that, in its judgment of 23 April 2015 (C-38/14, 
Zaizoune), which concerns the legislation to which the main proceedings relate, 
the Court of Justice held that ‘Directive 2008/115/EC of the European Parliament 
and of the Council of 16 December 2008 on common standards and procedures in 
Member States for returning illegally staying third-country nationals, in particular, 
Articles 6(1) and … 8(1), read in conjunction with Article 4(2) and (3), must be 
interpreted as precluding legislation of a Member State such as that at issue in the 
main proceedings, which provides, in the event of third-country nationals illegally 
staying in the territory of that Member State, depending on the circumstances, for 
either a fine or removal, since the two measures are mutually exclusive.’ 
13 The referring court notes that, although the Court of Justice delivered that 
judgment when the 2009 legislative amendment referred to in paragraph 11 was 
already in force, it was delivered as if the situation was still that described in 
paragraph 10, that is to say, as if everything was merely interpretation by the 
courts (since the question for a preliminary ruling was put to the Court of Justice 
in that way). The referring court highlights the need to bear in mind that as a result 
of Basic Law 2/2009, the requirement that there must be an additional reason for 
imposing removal, which was originally based on interpretation, had become, as it 
continues to be, a clear, decisive statutory requirement that cannot be 
circumvented. 
14 The referring court notes that the Tribunal Supremo (Supreme Court) and many 
lower courts have been interpreting the Court of Justice judgment of 23 April 
2015 (C-38/14, Zaizoune) as meaning that it authorises the Spanish administrative 
authorities and courts to disapply the provisions of Basic Law 4/2000 according to 
which the penalty of a fine takes precedence and there must be express reasons 
stated for removal. 
15 According to the referring court, that interpretation entails applying Directive 
2008/115/EC directly, to the detriment of the person concerned and aggravating 
his or her liability in criminal law, and therefore removing any illegally staying 
third-country national (in the case of the priority procedure, without even a period 
SUBDELEGACIÓN DEL GOBIERNO EN TOLEDO 
 
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for voluntary compliance). That is to say, that interpretation gives the Directive 
‘inverse or descending vertical effect’ (relied on by the State against the 
individual) which is very different from the ‘direct or ascending vertical effect’ 
(relied on by the individual against the State) which the Court of Justice has held 
should obtain where a directive has not been transposed. 
16 The referring court submits that the decisions by the Tribunal Supremo (Supreme 
Court) and other lower courts do not, in its view, involve interpreting Spanish law 
in conformity with the Directive (which might perhaps have been possible before 
Basic Law 4/2000 was amended by Basic Law 2/2009), but purely and simply 
disapplying national provisions, and that in in relation to penalties and to the 
detriment of the defendant. The referring court asserts that the national courts 
have an obligation to interpret national law in conformity with EU law (to that 
effect, the judgment of 8 November 2016, Ognyanov, C-554/2014, and many 
others), but that this obligation is subject to limitations even in the case-law of the 
Court of Justice. 
17 According to the referring court, the Tribunal Supremo (Supreme Court) believes 
that the Court of Justice has already determined the issue of ‘inverse or 
descending vertical effect’, by authorising it, in its judgment of 23 April 2015 
(C-38/14, Zaizoune). As the Tribunal Supremo (Supreme Court) interprets it, that 
judgment contains not only a declaration that Spanish law is incompatible with 
EU law, but also an instruction to the Spanish courts to apply the directive 
directly, to the detriment of the individual. The referring court considers that a 
number of paragraphs of the judgment, such as paragraph 39, can indeed give rise 
to a degree of doubt in that regard. However, in its view, that judgment could 
never give rise to that consequence, since if it did, the Court of Justice would be 
contradicting abundant earlier case-law. 
18 As regards the fact that the State cannot apply a directive directly to the detriment 
of an individual and in particular by ignoring national legislation (inverse or 
descending vertical effect), the referring court recalls first that, in its judgment of 
26 February 1986 (C-152/84, Marshall), the Court of Justice held (paragraph 46) 
that a directive may not of itself impose obligations on an individual and that a 
provision of a directive may not be relied upon as such against such a person. To 
the same effect, it refers to the judgment of 11 June 1987 (C-14/86, Pretore di 
Salò). 
19 The judgment of 8 October 1987 (C-80/86, Kolpinghuis Nijmegen), for its part, 
established that, although in applying its national legislation, a court of a Member 
State is required to interpret that legislation in the light of the wording and the 
purpose of the directive, a directive cannot, of itself and independently of a 
national law adopted for its implementation, have the effect of determining or 
aggravating the liability in criminal law of persons who act in contravention of the 
provisions of that directive. The obligation to interpret national law in conformity 
with EU law, as can be seen in paragraph 13, ‘is limited by the general principles 
of law which form part of Community law and in particular the principles of legal 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-568/19 
 
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certainty and non-retroactivity. Thus the court ruled in its judgment of 11 June 
1987, Pretore de Salò, C-14/86, ECR p. 2545, that a directive cannot, of itself and 
independently of a national law adopted by a Member State for its 
implementation, have the effect of determining or aggravating the liability in 
criminal law of persons who act in contravention of the provisions of that 
directive.’ 
20 The referring court also mentions the judgment of 26 September 1996 (C-168/95, 
Arcaro), in which the Court of Justice states that ‘there is no method of procedure 
in Community law allowing the national court to eliminate national provisions 
contrary to a provision of a directive which has not been transposed where that 
provision may not be relied upon before the national court’, and in which, after 
recalling the obligation on national courts to interpret national rules in the light of 
EU rules, holds in paragraph 42 that ‘however, that obligation of the national 
court to refer to the content of the directive when interpreting the relevant rules of 
its own national law reaches a limit where such an interpretation leads to the 
imposition on an individual of an obligation laid down by a directive which has 
not been transposed or, more especially, where it has the effect of determining or 
aggravating, on the basis of the directive and in the absence of a law enacted for 
its implementation, the liability in criminal law of persons who act in 
contravention of that directive’s provisions (see the judgment in Kolpinghuis 
Nijmegen, cited above, paragraphs 13 and 14).’ 
21 Last, the judgment of 5 December 2017 (Case C-42/17), emphasises that there can 
be limitations on the obligation to interpret national law in accordance with EU 
law, including the principle that criminal offences and penalties must be defined 
by law. According to the referring court, that principle that penalties must be 
defined by law is called into question when the courts fail to apply a more 
favourable rule of criminal law (the rule providing for a fine and only allowing 
removal where reasons are stated) and directly apply a directive, to the detriment 
of an individual. 
22 In the light of the foregoing, the referring court has referred this question to the 
Court of Justice for a preliminary ruling, and applied for it to be dealt with using 
the expedited procedure under Article 105 of the Rules of Procedure.