Opinion of the Advocate General — ECLI:EU:C:2020:307
Date: 2020-04-23
Language of the case: Dutch
Subject matter: Asylum policy;Justice and home affairs;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
20 December 2018 
Referring court: 
Hoge Raad der Nederlanden (Netherlands) 
Date of the decision to refer: 
27 November 2018 
Criminal proceedings against: 
JZ 
  
Subject of the action in the main proceedings 
Appeal in cassation against a judgment of the Gerechtshof Amsterdam (Court of 
Appeal, Amsterdam), by which JZ was sentenced to imprisonment pursuant to 
Article 197 Wetboek van Strafrecht (Netherlands Criminal Code), which provides 
that a foreign national residing in the Netherlands who knows or has serious 
reason to suspect that an entry ban has been imposed on him pursuant to 
Article 66a(7) of the Vreemdelingenwet 2000 (Law on Foreign Nationals 2000) 
shall be subject to prosecution. Following that provision, the foreign national 
against whom an entry ban applies cannot maintain lawful residence if he 
represents a danger to public order or national security. 
Subject matter and legal basis of the request for a preliminary ruling 
Preliminary reference — Directive 2008/115/EC — Article 11 — Return of 
illegally staying third-country nationals — Return decision — Entry ban — Time 
at which an entry ban begins — Scope of the Ouhrami judgment — Article 267 
TFEU 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-806/18 
 
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Question referred for a preliminary ruling 
Is the criminalisation under national law which criminalises the stay of a third-
country national in the territory of the Netherlands after an entry ban has been 
imposed on him pursuant to Article 66a(7) of the Vreemdelingenwet 2000 
compatible with EU law, in particular with the finding of the Court of Justice of 
the European Union in the judgment of 26 July 2017, Ouhrami v Netherlands 
(C-225/16, EU:C:2017:590, paragraph 49) according to which the entry ban 
provided for in Article 11 of the Return Directive produces its ‘effects’ only from 
the point in time the foreign national has returned to his country of origin or to 
another third country, when national law also holds that that foreign national has 
no lawful residence and moreover it is established that the steps of the return 
procedure set out in the Return Directive have been followed but the actual return 
has not taken place? 
Provisions of EU law cited 
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 (Return Directive): recitals 2, 4, 
6, 8, 10, 11, 14 and 24 and Article 1, Article 2(1), Article 3(1), (2), (3), (4), (6) 
and (8), Article 6 (1) and (6), Article 11(1), (2) and (3). 
EU case-law cited 
Judgment of 19 September 2013, Filev and Osmani, C-297/12, EU:C:2013:569 
Judgment of 26 July 2017, Ouhrami, C-225/16, EU:C:2017:590 
Provisions of national law cited 
Vreemdelingenwet 2000 (Law on Foreign Nationals 2000; ‘Vw 2000’): 
Article 12(1)(d); Article 61(1); Article 62(1)1; Article 62(2)(c); Article 62a(1) and 
(2); Article 66a(1), (4) and (7); Article 67(1)(c) 
Vreemdelingenbesluit 2000 (Decree on Foreign Nationals 2000): 
Article 6.5a(4)(a); Article 6.5a(5)(a) and (b) 
Vreemdelingencirculaire (Circular on Foreign Nationals): Section A4/3.3 
Wetboek van Strafrecht (Criminal Code): Article 197 
JZ 
 
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Brief summary of the facts and the procedure in the main proceedings 
1 The accused (JZ) was, by an order of 14 April 2000, declared an undesirable 
foreign national within the meaning of Article 21 of the Vreemdelingenwet 1994. 
That declaration of undesirability meant, in essence, that both continued residence 
in the Netherlands as well as return to and stay in the Netherlands after departure 
are punishable if the other constituent elements of Article 197 of the Criminal 
Code are present. By an order of the Staatssecretaris van Veiligheid and Justitie 
(State Secretary for Security and Justice) of 19 March 2013, that declaration of 
undesirability was lifted upon application by JZ in connection with the 
amendment of 31 December 2011 of Vw 2000 as a consequence of the 
transposition 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. By that order, a 5-
year entry ban was also issued against JZ pursuant to Article 66a(7) of Vw 2000, 
whereby the declaration of undesirability was lifted from the moment the entry 
ban took effect. According to the order, that lifting did not, however, bring any 
change in JZ’s obligation to leave. He therefore had to leave the Netherlands 
immediately and on his own initiative and was liable to be removed. By virtue of 
Article 62a(2) of Vw 2000, that order constitutes a return decision. 
2 By way of motivation, the order states inter alia that JZ has been convicted on 
multiple occasions of committing various offences. According to Section A4/3.3 
of the Vreemdelingencirculaire, any suspicion or conviction in respect of an 
offence constitutes a danger to public order. As JZ represented a danger to public 
order, he was to leave the Netherlands immediately pursuant to Article 62(2)(c) of 
Vw 2000. An entry ban was accordingly imposed on him pursuant to 
Article 66a(1)(a) of Vw 2000. In the light of Article 66a(7)(b) of Vw 2000, JZ 
cannot, as a consequence of the entry ban, be lawfully resident. 
3 The Gerechtshof Amsterdam determined that the steps of the return procedure 
were followed. JZ did not, however, leave the Netherlands following the order of 
19 March 2013. It is undisputed that, on 21 October 2015, he remained in 
Amsterdam in contravention of that order. According to Article 197 of the 
Netherlands Criminal Code, the foreign national who stays in the Netherlands 
even though he knows or has serious reason to suspect that an entry ban has been 
imposed on him pursuant to Article 66a(7) of Vw 2000 is liable to be prosecuted. 
By a judgment of the Gerechtshof Amsterdam, JZ was accordingly sentenced to a 
prison term of two months. 
4 JZ lodged an appeal in cassation against that judgment before the Hoge Raad 
(Supreme Court). 
Principal arguments of the parties in the main proceedings 
5 During the processing of the case on appeal by the Gerechtshof Amsterdam, JZ’s 
legal counsel, following the European Commission in the Ouhrami case 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-806/18 
 
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(C-225/16), took the position that an entry ban comes into effect only once the 
person concerned has left the territory of the Member States. Therefore, according 
to the legal counsel, the legal consequence that JZ’s stay is punishable can exist 
only after his departure. 
6 In assessing the defence, the Gerechtshof Amsterdam first stated that the order of 
19 March 2013, whereby an entry ban was imposed on JZ, was legally published 
and had legal effect from the date on which the alleged offence was committed 
(21 October 2015). Moreover, the Gerechtshof found insufficiently concrete 
support in the written observations of the European Commission submitted by the 
legal counsel for breaching the statutory framework as has been interpreted by the 
Hoge Raad and the Raad van State (Council of State) and departing from the 
contrary. 
7 On appeal, JZ complains inter alia in respect of the finding of the Gerechtshof 
Amsterdam that he is guilty of being a ‘foreign national who stays in the 
Netherlands even though he knows or has serious reason to suspect that an entry 
ban has been imposed on him pursuant to Article 66a(7) of the Vreemdelingenwet 
2000’. The plea invokes the circumstance that JZ had not yet left the European 
Union after the imposition of the entry ban and argues that the entry ban had 
therefore not yet ‘come into effect’. 
Brief summary of the reasons for the referral 
8 By the Ouhrami judgment of 26 July 2017, the Court of Justice held that 
Article 11(2) of the Return Directive was to be interpreted as meaning that the 
starting point of the duration of an entry ban, as referred to in that provision, 
which in principle may not exceed five years, must be calculated from the date on 
which the person concerned actually left the territory of the Member States. 
9 In paragraph 49 of that judgment, the Court of Justice considered that, until the 
point in time at which the obligation to return is voluntarily complied with or 
enforced, and the person concerned has thus actually gone back to a country 
outside the European Union, the illegal stay of the person concerned is governed 
by the return decision and not by the entry ban; it is only from that point in time 
that the entry ban produces its effects, by prohibiting the person concerned, for a 
certain period of time following his return, from again entering and staying in the 
territory of the Member States. 
10 According to Article 197 of the Criminal Code, the foreign national who stays in 
the Netherlands even though he knows or has serious reason to suspect that an 
entry ban has been imposed on him pursuant to Article 66a(7) of Vw 2000 is 
liable to be prosecuted. In accordance with Article 66a(7)(b) of Vw 2000, in so far 
as is of relevance here and unless one of the exceptions provided for in the 
legislation or in the case-law applies, the foreign national to whom an entry ban 
applies cannot be lawfully resident if he represents a danger to public order or 
national security. 
JZ 
 
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11 The question can therefore be asked whether the fact that JZ did not leave the 
Netherlands after 19 March 2013 — such that the 5-year period referred to in 
Article 11(2) of the Return Directive had not yet come into effect — means that 
EU law, in particular the Return Directive and the interpretation thereof given by 
the Court of Justice in the Ouhrami judgment, preclude JZ from being found 
guilty of unlawful residence in the Netherlands after an entry ban was imposed on 
him pursuant to Article 66a(7) Vw 2000. 
12 In a section of the Netherlands literature, the consideration in the Ouhrami 
judgment that the duration of the entry ban must be calculated from the date on 
which the person concerned actually left the territory of the Member States has a 
consequence attached to it, namely, that it is impossible to prosecute and penalise 
a foreign national who has not yet actually returned to a country outside the 
European Union in connection with acts contrary to Article 197 of the Criminal 
Code. Other authors, however, take the position that that ruling does not have such 
a consequence, given that Article 197 of the Criminal Code pertains only to the 
date at which the entry ban was imposed (and to the foreign national’s awareness 
of that imposition). 
13 The question is therefore whether Article 197 of the Criminal Code is contrary to 
the Return Directive and therefore ineffective in so far as the stay in the 
Netherlands of third-country nationals who have not yet left the territory of the 
EU is punishable on the sole ground that an entry ban has been imposed on him. 
With regard to the question referred for a preliminary ruling, the Hoge Raad notes 
that, after the amendment of the Vreemdelingenwet of 31 December 2011 (and 
until the Court’s Ouhrami judgment on 26 July 2017) Article 197 of the Criminal 
Code led to the prosecution and penalisation of foreign nationals on whom, 
pursuant to Article 66a(7) Vw 2000, an entry ban had been imposed if the 
remaining conditions imposed therein by Netherlands law and EU law were 
satisfied, even in cases such as the present one — where it is not established that 
the foreign national actually left the Netherlands after the imposition of the entry 
ban. There are ongoing criminal proceedings before the Netherlands courts against 
foreign nationals in which this question is at issue, in the light of the uncertainty 
as to the exact scope of the Ouhrami judgment; those persons are in detention 
pending clarity on this matter.