Order;Information — ECLI:EU:C:2023:896
Date: 2023-11-16
Language of the case: French
Court formation: Ninth Chamber
Subject matter: Asylum policy;Justice and home affairs;Area of freedom, security and justice;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling - inadmissible
Origin: Belgium

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Translation C-203/23 – 1 
Case C-203/23 
Request for a preliminary ruling 
Date lodged: 
28 March 2023 
Referring court: 
Tribunal de première instance de Liège (Belgium) 
Date of the decision to refer: 
10 March 2023 
Applicant: 
PL 
Defendant: 
État belge 
  
Tribunal de première instance de Liège (Court of First Instance, Liège, 
Belgium) – Liège Division 
Judgment 
[…] 
In the proceedings: 
PL, […], born in Kinshasa (Congo), […] 
Applicant, […] 
v 
ETAT BELGE, […] 
Defendant, […] 
EN 
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[…] 
I. PROCEDURE 
[…] 
Having regard to the documents relating to the procedure, which has been duly 
followed, and in particular: 
–  the judgment delivered by this chamber on 14 January 2022 […], 
–  the order of the Court of Justice of the European Union of 8 September 2022, 
– […] 
[…] 
II. PRESENTATION OF THE FACTS AND OF THE REQUEST 
II.1. PL, who is of Congolese nationality, arrived in Belgium at the end of 2010. 
II.2. On 12 October 2010, she applied for asylum. 
II.3. On 4 July 2012, the Commissaire Général aux Réfugiés et aux Apatrides 
(Commissioner General for Refugees and Stateless Persons, Belgium) […] 
refused to grant her refugee status or subsidiary protection status. 
II.4. On 25 July 2012, an order to leave the territory [was] made, following that 
decision. 
II.5. On an unspecified date, PL lodged an appeal before the Conseil du 
contentieux des étrangers (Council for asylum and immigration proceedings, 
Belgium)[;‘the CCE’] against the decision of 4 July 2012 refusing international 
protection. 
II.6. On 13 August 2012, she brought an appeal before the [CCE] seeking the 
suspension and annulment of the order to leave the territory made on 25 July 
2012. 
II.7. On 27 August 2012, she was given a ‘special residence document’ 
(Annex 35) authorising her to remain on the territory until a ruling had been given 
on her appeal brought before the [CCE] against the decision of 4 July 2012 
refusing international protection. 
II.8. On 13 September 2012, she submitted an application for a residence permit 
on the basis of Article 9bis of the [Law of 15 December 1980 on the entry, 
residence, establishment and removal of foreign nationals (‘the Law of 
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15 December 1980’ or ‘the Law on foreign nationals’)], which she subsequently 
completed on 14 January 2013. 
II.9. On 31 December 2012, the [CCE] dismissed the appeal brought against the 
decision of 4 July 2012 refusing international protection. PL consequently had her 
Annex 35 withdrawn […]. 
II.10. On 18 March 2013, the application for a residence permit made on 
13 September 2012 on the basis of Article 9bis was declared inadmissible. 
II.11. On 21 March 2013, the [CCE] […] dismissed the appeal brought against 
the order to leave the territory made on 25 July 2012. 
II.12. On 27 March 2013, a new order to leave the territory was made against PL. 
II.13. On 29 May 2013, she brought an appeal seeking the suspension and 
annulment of the decision, taken on 18 March 2013, that her application for a 
residence authorisation [on the basis of Article 9bis] was inadmissible […]. 
II.14. On 2 September 2019, the [CCE] dismissed the appeal brought against that 
decision of 18 March 2013 […]. 
II.15. On 19 September 2019, PL brought an administrative appeal on a point of 
law before the administrative litigation section of the Conseil d’État (Council of 
State, Belgium) against the judgment given on the basis of Article 9bis by the 
[CCE] on 2 September 2019. 
II.16. By judgment No 250 863, of 10 June 2021, the Council of State dismissed 
the appeal on a point of law, brought on the basis of Article 9bis, contrary to the 
opinion of the auditors’ office. 
II.17. By summons of 26 July 2021, PL brought the present proceedings. 
II.18. In terms of the most recent forms of order sought by them, the position of 
each of the parties is as follows. 
PL claims that the court should: 
‘Declare the action admissible and well founded, 
Before ruling, refer the following question to the CJEU: 
Does EU law, essentially the provisions of the Charter of Fundamental 
Rights of the European Union and 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 
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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, 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? 
In order to allow PL to effectively make an application for regularisation, order 
the État belge (Belgian State) to communicate to her in writing the positive and 
objective criteria for her to be regularised on the basis of Article 9bis of the Law 
on foreign nationals […] [procedure] 
By way of compensation for the material and non-material damage suffered as a 
result of the abovementioned errors, PL claims that the court should order [the 
Belgian State] to pay a provisional amount of one euro. Judgment should be 
reserved on the remainder. 
[…] [procedure]’. 
The Belgian State [contends that the court should]: 
‘… 
[…] [objection to jurisdiction and plea of inadmissibility] 
In the alternative, reject the applicant’s claim as unfounded; 
[…] [procedure]’. 
III. ANALYSIS 
III.1. Jurisdiction, competence and admissibility 
[…] 
[…] [grounds not relevant to the request for a preliminary ruling] 
The claim is admissible. 
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III.2. Basis 
Article 267 of the Treaty on the Functioning of the European Union provides: 
‘The Court of Justice of the European Union shall have jurisdiction to give 
preliminary rulings concerning: 
(a) the interpretation of the Treaties; 
(b) the validity and interpretation of acts of the institutions, bodies, offices or 
agencies of the Union; 
Where such a question is raised before any court or tribunal of a Member 
State, that court or tribunal may, if it considers that a decision on the 
question is necessary to enable it to give judgment, request the Court to give 
a ruling thereon …’ 
The parties disagree as to whether or not EU law applies in the present case and as 
to the consequences of that. 
PL claims [as follows]: 
‘Failure to respect EU law, 
The refusal to make public the positive criteria for regularisation (of 
residence) is also incompatible with EU law, whatever the Council of State 
may say. 
Article 9bis of the Law [of 15 December 1980] falls within the scope of the 
discretion reserved to Member States by Article [6(4)] of [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 (OJ 2008 L 348, p. 98) 
(“the Return Directive”)]: “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.” 
According to recital 6 of the same directive: “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, 
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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.” 
According to recital 24 of the same directive: “This Directive respects the 
fundamental rights and observes the principles recognised in particular by 
the Charter of Fundamental Rights of the European Union.” 
Article 1 of the [Charter of Fundamental Rights of the European Union, “the 
Charter”] states that “Human dignity is inviolable. It must be respected and 
protected.” Article 7 of the Charter guarantees respect for private life, 
Article 15, the right to work, and Articles 20 and 21, respect for the 
principles of equality and non-discrimination. 
The CJEU stated in the [judgment of 5 June 2014, Mahdi (C-146/14 PPU, 
EU:C:2014:1320)]: “As is clear from the objective of Directive 2008/115, 
described in paragraph 38 of this judgment, the purpose of the directive is 
not to regulate the conditions of residence on the territory of a Member 
State of third-country nationals who are staying illegally and in respect of 
whom it is not, or has not been, possible to implement a return decision. 
However, Article 6(4) of Directive 2008/115 enables the Member States 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. Similarly, recital 12 in 
the preamble to the directive states that the Member State should provide 
third-country nationals who are staying illegally but who cannot yet be 
removed with written confirmation of their situation. The Member States 
enjoy wide discretion concerning the form and format of the written 
confirmation” [paragraphs 87 and 88]. 
Even though the objective of the Return Directive is to “establish an 
effective removal and repatriation policy, based on common standards and 
common legal safeguards, for persons to be returned in a humane manner 
and with full respect for their fundamental rights and dignity”, Article [6(4)] 
of that directive allows Member States to grant a residence permit for 
humanitarian, compassionate or other reasons, which is the case of 
Article 9bis of the Law on foreign nationals. That is accepted by the CCE 
(judgment 168 510 of 27 May 2016): “In addition, Article 6(4) of Directive 
2008/115/EC of the European Parliament and of the Council of 
16 December 2008 provides that the defendant is to retain the right to 
favour the option of regularisation of residence ‘for compassionate, 
humanitarian or other reasons’, and recital 6 of that directive provides that 
‘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’ (see, to that effect, CE [Council of State], No 232 758 of 
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29 October 2015)”. That judgment was not criticised (judgment 238 170 of 
11 May 2017). 
Since the Return Directive thus authorises a non-return decision (see also 
[recital 12] thereof), the principles governing it also apply to such a decision, 
in particular Article 12 which provides that decisions taken must give 
reasons in fact and in law, and [recital 6] which transversally provides for 
objective criteria to be taken into account: “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 …” 
According to the Council of State, “there is no need to refer to the Court of 
Justice of the European Union the question for which the applicant seeks a 
preliminary ruling since Directive 2008/115/EC does not in any way govern 
the conditions or procedures for applying for a residence permit. Since that 
finding is so obvious as to leave no scope for any reasonable doubt, the 
Council of State is not obliged to refer a question to the Court of Justice of 
the European Union”. 
That supposed obviousness is contradicted by the finding earlier in the 
judgment that “Ms Valérie Michiels, First Auditor, gave a contrary 
opinion”, according to which: “Article 6.4 of the aforementioned Directive 
2008/115 provides an exception to the obligation on Member States to make 
a return decision in respect of a third-country national staying illegally, by 
providing that no return decision may be issued where a Member State 
decides, in a sovereign capacity, to grant an autonomous residence permit 
to such a national for humanitarian or compassionate reasons. Article 9bis 
of the Law of 15 December 1980 is a provision which does not merely set 
out the conditions under which a residence permit of more than three 
months may be applied for in Belgian territory, by way of exception to the 
rule laid down in Article 9 of the Law, according to which such an 
application must be submitted to the competent Belgian diplomatic or 
consular post for the place of residence or stay abroad, but also allows, 
where those admissibility conditions are met, the grant of a right to stay for 
more than three months, in particular for compassionate, humanitarian or 
other reasons, in the case of a third-country national staying illegally on the 
territory, as envisaged by Article 6.4 of Directive 2008/115. Therefore, as 
the [CCE] pointed out in its judgment No. 168 510 of 27 May [2016], it 
must be held that Article 9bis of the Law of 15 December 1980 constitutes a 
partial transposition of Article 6(4) of Directive 2008/115 and falls within 
the scope of the discretion left to the Member States to decide to grant an 
autonomous residence permit on humanitarian grounds. Consequently, it 
may be considered that, irrespective of the fact that the objective of 
Directive 2008/115 is not to dictate the conditions of residence on the 
territory of a Member State of third-country nationals whose stay is illegal, 
given that those rules are a matter for national law alone, Article 9bis of the 
Law of 15 December 1980 constitutes an implementation of that directive 
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(namely Article 6(4) thereof) and that the principles governing the directive 
also apply to decisions based on that provision. Consequently, contrary to 
what the opposing party claims, recital 6 of that directive, according to 
which decisions taken under that directive should be taken on a case-by-
case basis and be based on objective criteria, appears to be applicable to a 
decision on inadmissibility taken on the basis of Article 9bis of the Law of 
15 December 1980, as well as recital 24, according to which that directive 
respects the fundamental rights and observes the principles recognised in 
particular by the Charter of Fundamental Rights of the European Union”. 
And [the applicant proposes] the question referred to in the operative part [of 
the judgment]. 
If it were to be the case that Belgian law is not compliant with EU law, the 
absence of legal criteria for regularisation, the State’s administrative 
management and the judgments given by the administrative courts, which 
are based on Belgian law, would be manifestly erroneous. 
As the degree of obviousness is not that found by the Council of State, the 
matter should be referred to the CJEU before a ruling is given. 
Alternatively, [the third paragraph of Article 267] TFEU states that, where a 
question on which a preliminary ruling may be given “is raised in a case 
pending before a court or tribunal of a Member State against whose 
decisions there is no judicial remedy under national law, that court or 
tribunal shall bring the matter before the Court”. Ordinarily optional, a 
reference for a preliminary ruling is obligatory for courts adjudicating at last 
instance, including [the] Council of State hearing an appeal on a point of 
law, as in the present case. The Council of State was therefore obliged to 
refer a question for a preliminary ruling. In failing to do so, it made an error. 
With regard to the alleged incompatibility with EU law, the defendant refers 
to the judgment of the Council of State of 10 June 2021, according to which: 
“Article 9bis of the Law of 15 December 1980 on the entry, residence, 
establishment and removal of foreign nationals does not fall within the 
scope of the implementation of Article 6(4) of Directive 2008/115/EC”. 
Whilst the defendant correctly maintains that that judgment has the force of 
res judicata, the applicant maintains, for her part, that the reasoning adopted 
in that judgment is erroneous and that it gives rise to liability on the part of 
the State on that basis too. 
It is apparent from the table relating to the transposition of Directive 
2008/115/EC […], showing the correspondence between Directive 2008/115 
and the national transposition measures, that Article [6(4)] of the Return 
Directive is transposed in Articles 9bis and 9ter of the Law on foreign 
nationals. 
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If the Belgian legislature decided to transpose Article [6(4)] in Article 9bis 
of the Law on foreign nationals, firstly, neither the defendant nor its courts 
may decide/hold to the contrary; secondly, as Article 9bis is supposed to 
transpose Article [6(4)] of the Return Directive, the principles which that 
directive applies must also [be applied] in Belgian law, so that the question 
raised is perfectly relevant for assessing fault on the part of the State: 
– which has failed to lay down any objective criteria in its legislation 
– which applies undisclosed criteria, which is at odds with any form of 
objectivity 
– whose courts claim that that legislation and those administrative 
practices are compliant with EU law 
– whose highest court refuses to make a reference to the CJEU, in breach 
of the third paragraph of Article 267 TFEU (which is not disputed by 
the defendant in terms of the form of order which it seeks). 
Decisions taken under the Return Directive must be based on objective criteria 
[recital 6], which alone are capable of avoiding arbitrariness [judgment of 
15 March 2017, Al Chodor, C-528/15, EU:C:2017:213, paragraph 28] …’. 
The Belgian State contends [as follows]: 
‘24. With regard to the alleged incompatibility with EU law, the defendant 
refers to the abovementioned judgment of the Council of State of 10 June 
2021 … 
The Council of State, in its judgment of 10 June 2021, has already rejected 
that claim, emphasising that: 
“… there is no need to refer to the Court of Justice of the European Union 
the question for which the applicant seeks a preliminary ruling since 
Directive 2008/115/EC does not in any way govern the conditions or 
procedures for applying for a residence permit. Since that finding is so 
obvious as to leave no scope for any reasonable doubt, the Council of State 
is not obliged to refer a question to the Court of Justice of the European 
Union”. 
Therefore, it is not necessary to make a reference to the Court of Justice of 
the European Union and reference will be made to the judgment of the 
Council of State of 10 June 2021 for the remainder …’. 
It is for the CJEU to determine whether or not EU law applies and, if so, whether 
or not EU law has been breached. 
[…] 
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DECISION 
The court […] 
[…] 
[…] [procedure] 
Refers the following question to the CJEU: 
‘Does EU law, essentially the provisions of the Charter of Fundamental 
Rights of the European Union and 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?’ 
[…]