Opinion of the Advocate General — ECLI:EU:C:2025:51
Date: 2025-01-30
Language of the case: French;Dutch
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary  C-636/23 – 1 
Case C-636/23 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date of submission:  
24 October 2023 
Referring court:  
Raad voor Vreemdelingenbetwistingen (Belgium) 
Date of the decision to refer:  
16 October 2023 
Appellant:  
W 
Respondent:  
Belgian State 
  
Subject of the action in the main proceedings 
The applicant brought an action for annulment of a return decision before the 
referring court. That appeal was upheld by judgment for failure to state reasons for 
the decision not to grant a period for voluntary departure. The respondent 
appealed in cassation to the Raad van State (Council of State), Belgium, the 
Supreme Administrative Court. Following the appeal in cassation against its first 
judgment, the referring court must rule again on the return decision. 
Subject matter and legal basis of the request for a preliminary ruling 
The referring court is uncertain whether the grant of a period for departure is 
merely a measure enforcing the return decision or a constituent element of that 
decision which must be challenged and which, in the event of nullity, has the 
effect of rendering the return decision null and void in its entirety. The answer to 
that question also affects the conditions under which an entry ban may be issued. 
Article 267 TFEU. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-636/23 
 
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Questions referred for a preliminary ruling 
1. Must Article 7(4), Article 8(1) and (2) and Article 11(1) of Directive 
2008/115, read either in isolation or together, in the light of Article 13 of Directive 
2008/115 and Article 47 of the Charter of Fundamental Rights of the European 
Union, be interpreted as precluding the refusal to grant a period for voluntary 
departure from being regarded as a mere means of enforcement which does not 
alter the legal position of the foreign national concerned, given that the grant or 
otherwise of a period for voluntary departure does not alter the primary finding of 
an illegal stay in the territory? 
2. If the answer to the first question is in the affirmative, must the words 
‘together with’ in Article 3(6) and the words ‘accompanying’ in Article 11(1) of 
Directive 2008/115 be interpreted as meaning that they do not preclude the 
competent authority from being able or having to issue, even after a considerable 
period of time, an entry ban based on a return decision that has not granted a 
period for voluntary departure? 
If the answer to that question is in the negative, does that wording mean that a 
return decision which has not granted a period for voluntary departure must be 
accompanied simultaneously by an entry ban or within a reasonably short period 
of time? 
If the answer to that question is in the affirmative, does the right to an effective 
remedy guaranteed by Article 13 of Directive 2008/115 and Article 47 of the 
Charter of Fundamental Rights of the European Union mean that it is possible, in 
the context of an appeal against a return decision, to challenge the legality of a 
decision not to grant a period for voluntary departure, whereas otherwise the 
legality of the legal basis of the entry ban could no longer be effectively 
challenged? 
3. If the answer to the first question is in the affirmative, must the terms ‘an 
appropriate period’ in the first subparagraph of Article 7(1) and ‘an obligation to 
return’ in Article 3(4) of Directive 2008/115 be interpreted as meaning that a 
provision laying down a period of time, or in any event the refusal to grant a 
period of time, within the framework of the obligation to depart is an essential 
element of a return decision, in the sense that, if that period is found to be 
unlawful, the return decision lapses in its entirety and a new return decision must 
be issued? 
If the Court considers that the refusal to grant a period of time is not an essential 
element of a return decision, and if the Member State concerned has not made use 
of the option, under Article 7[(1)] of Directive 2008/115, to grant a period of time 
only upon application by the [third-country] national concerned, what is the 
practical scope and enforceability of a return decision, within the meaning of 
Article 3(4) of Directive 2008/115, from which the element relating to the period 
would disappear? 
AL HOCEIMA 
 
3 
Provisions of EU law relied on and case-law of the EU judicature cited 
Article 3, points (4), (6) and (8), Article 6(1), Article 7(1) and (4), Article 8(1), (2) 
and (4), Article 11(1) and Article 13 of Directive 2008/115 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 
Article 47 of the Charter of Fundamental Rights of the European Union 
Judgments of the Court of 11 June 2015, Zh. and O. (C-554/13, paragraphs 46, 47, 
49, 50 and 54), 28 April 2011, El Drifi (C-61/11 PPU, paragraphs 35-38 and 51), 
11 December 2014, Boudjlida (C-249/13, paragraph 51), and 14 May 2020, 
Országos Idegenrendeszeti Főigazgatóság Dél-alföldi Regionális Igazgatóság 
(C-924/19 PPU, paragraph 115) 
Provisions of national law cited 
The following paragraphs of the Law on entry to the territory, residence, 
establishment and removal of foreign nationals (Vreemdelingenwet): 
Paragraph 1(1), points (6) and (8), defining the terms ‘removal decision’ and 
‘entry ban’, in transposition of Article 3, points 4 and 6, respectively, of Directive 
2008/115. 
Paragraph 7, opening words, first and third subparagraphs, under which the 
national authorities may issue an order to leave the national territory if the 
foreigner does not possess the required documents and his conduct is likely to 
harm public order or national security. 
Paragraph 74/11(1): ‘The duration of the entry ban is determined by taking into 
account the specific circumstances of each case. The expulsion decision shall be 
accompanied by an entry ban for a maximum of three years … if no period for 
voluntary departure has been granted … [and] of more than five years if the third-
country national poses a serious threat to public order or national security.’ 
Paragraph 74/14(1): ‘The expulsion decision shall stipulate a period of 30 days to 
leave the territory … (2) As long as the period for voluntary departure is running, 
the third-country national is protected against forced expulsion. … (3) There may 
be a derogation from the time limit provided for in (1) if … there is a risk of 
absconding, or … the third-country national is a threat to public order or national 
security …. In such a case, the removal decision shall stipulate a period of less 
than seven days or no period at all.’ 
Cassation judgment No 254.377 of 1 September 2022 of the Council of State 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-636/23 
 
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Brief summary of the facts and the procedure in the main proceedings 
1 The applicant, a Moroccan national, was sentenced to imprisonment for a drug 
offence on 7 June 2019. On 18 July 2019, Belgium ordered him to leave the 
Belgian territory (‘the return decision’) and imposed on him an eight-year re-entry 
ban. 
2 The grounds of the return decision stated that the applicant had no valid residence 
documents and that there was a danger that his behaviour would harm public order 
and that he would abscond. Due to that risk, he did not obtain a period for 
voluntary return. 
3 The action for suspension and annulment of the return decision and the entry ban 
which the applicant brought before the Raad voor Vreemdelingenbetwistingen 
(Council for asylum and immigration proceedings) (the ‘Council’) was upheld by 
the latter. The defendant then appealed in cassation to the Council of State only 
against the annulment of the return decision and not against the annulment of the 
entry ban. That court, given the subject matter of the cassation appeal, overturned 
only the ruling on the return decision. The Council must now rule again on that 
return decision. 
4 The Council initially annulled the return decision on the ground that the refusal to 
grant a period for voluntary departure had been poorly reasoned. The risk of 
harming public order and absconding had not been assessed individually for the 
applicant, contrary to the Court’s case-law. Since the decision not to grant a 
period for voluntary departure was an essential or constitutive element of the 
return decision, that decision had therefore to be annulled in its entirety. 
5 By contrast, in its cassation judgment, the Council of State held that the period for 
voluntary departure was merely an implementing measure, since the applicant’s 
legal situation already existed at the time the return decision was adopted and, in 
any event, he had no legal residence. The time limit does not therefore constitute a 
constituent element of the return decision. The Council had therefore infringed 
Paragraphs 7 and 74/14 of the Law on foreign nationals by finding otherwise. 
Principal arguments of the parties in the main proceedings 
6 According to the applicant, the return decision constitutes an indivisible 
administrative decision, which must contain two components, namely the reason 
for an order to leave the territory and an enforcement period. It relies, in that 
regard, on Article 3(4) and (8) of Directive 2008/115. A manifest illegality in the 
statement of reasons for not granting a period for voluntary departure renders the 
entire return decision unlawful. According to the Court’s judgment of 11 June 
2015, Zh. and O. (C-554/13), a shorter or non-existent period for voluntary 
departure can be granted only in exceptional circumstances and must, in that case, 
be subject to an effective remedy. 
AL HOCEIMA 
 
5 
7 According to the defendant, a period for the enforcement of the return decision is 
merely a measure enforcing that decision, which does not alter the applicant’s 
legal situation. Under Article 7(1) of Directive 2008/115, Member States may 
provide that the period is to be granted only on application by the third-country 
national concerned. That period cannot therefore constitute an essential element of 
a return decision. Therefore, the challenge to that period or to its absence cannot 
render the return decision unlawful. 
Brief summary of the reasons for the referral 
8 The judgment of the Council of State in the present case does not stand alone. 
Under Belgian law, the Council is required to follow the case-law of that supreme 
administrative court. Since it has doubts as to the interpretation of the Court’s 
case-law in the light of the judgments of the Council of State, the Council is 
obliged, given the primacy of EU law, to determine whether the solution proposed 
by the Council of State is consistent with EU law. 
9 The first question concerns the nature of the grant of a period for voluntary 
departure. According to the Council of State, that time limit is a mere 
implementing measure – which cannot be challenged – and, according to the 
Council, an essential element which can be challenged. 
10 The Council sees indications in support of its position in the judgments in El Drifi 
(C-61/11 PPU), Zh. and O. (C-554/13) and Boudjlida (C-249/13). Although the 
Court refers to measures ‘to enforce return decisions’, such measures must comply 
with the principle of proportionality, be adopted on a case-by-case basis, be based 
on objective criteria and allow the person concerned to be heard before the 
adoption of the decision. It could be inferred from this that, in order to ensure the 
effectiveness of Article 7(4) of Directive 2008/115, a foreign national must have 
an effective remedy against the decision not to grant a period for voluntary 
departure. 
11 Furthermore, it could be inferred from the Court’s case-law that such a decision 
not only has the legal effect of allowing immediate enforcement, in accordance 
with Article 8(2) of Directive 2008/115, but also that that decision entails, 
pursuant to Article 11(1)(a) of that directive, an obligation to impose an entry ban 
when a return decision is adopted. Consequently, if no appeal is available against 
the failure to grant a return period, which therefore constitutes the basis of an 
entry ban, an entry ban cannot be the subject of an appeal either. 
12 The second question is raised by the Council because, following the appeal in 
cassation, that court is no longer called upon to rule only on the return decision, 
but not on the initial entry ban, which was annulled, which was based on that 
decision. In the context of the examination of the plea directed against the failure 
to grant a period for voluntary departure, it is necessary to clarify how the words 
‘accompanied’ in Article 11(1) or ‘together with a return decision’ should be 
interpreted in the definition of an entry ban in Article 3(6) of Directive 2008/115. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-636/23 
 
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This is important to determine whether the competent authority also has the 
possibility or the obligation, to impose a new entry ban on the remaining return 
decision after the annulment of the initial entry ban, or whether no new entry ban 
can be imposed on this old return decision. 
13 Neither Directive 2008/115 nor the case-law of the Court specifies the period 
between a return decision and an entry ban. 
14 The Court has repeatedly confirmed the obligation, under Article 11(1) of 
Directive 2008/115, to link an entry ban to a return decision which does not 
provide for a period for voluntary departure. According to the Commission’s 
Return Handbook (OJ 2017 L 339, p. 83), an entry ban may still be issued at a 
later stage as a measure supplementing a return decision already issued. 
15 However, from the judgment of 3 June 2021, BZ v Westerwaldkreis (C-546/19), 
the Council notes that it follows from the wording of Article 11(1) of Directive 
2008/115 that an ‘entry ban’ is deemed to ‘supplement’ a return decision. The 
term ‘supplement’ seems to indicate that an entry ban can only be linked to the 
return decision simultaneously or after a short period. 
16 If the words ‘together with’ and ‘accompanying’ preclude that an entry ban can or 
must still be imposed for a considerable time after a return decision, the question 
is whether an entry ban must be imposed at the same time as such a return 
decision or whether it must be imposed within a reasonably short period of time. 
17 If that wording does not preclude it, it remains to be ascertained whether the right 
to an effective remedy implies that the legality of a decision not to grant a period 
for voluntary departure must be capable of being challenged, since otherwise the 
legality of the legal basis of the entry ban could no longer be challenged. 
18 The third question serves to assess the plea alleging failure to grant a period for 
voluntary departure. If the answer to the first question is that the indication of the 
time limit in a return decision is an arguable legal act and that period is found to 
be unlawful because of a violation of Article 7(4) of Directive 2008/115, does this 
invalidate the return decision in its entirety? In other words, does a return decision 
consist of determining whether there is an illegal stay in the territory and a 
decision whether or not to grant a period for voluntary departure, and can these 
elements not be split? 
19 It may be inferred from the term ‘and’ in the definition of a return decision in 
Article 3(4) of Directive 2008/115 that the obligation to return, with an indication 
of the period within which that return must take place, is an essential or 
constituent element of such a decision. According to the judgment in Országos 
Ieen rendeszeti Főigazgatóság Dél-alföldi Regionális Igazgatóság 
(C-924/19 PPU), the imposition or issuance of an obligation to return is one of the 
two elements of a return decision. If it is established in court that the time limit 
was unlawful, does this change an essential point of the return decision? 
AL HOCEIMA 
 
7 
20 It seems to follow from the words ‘an appropriate period shall be fixed’ in 
Article 7(1) of Directive 2008/115 that a return decision must always contain an 
indication of a time limit, while Article 7(1) provides that ‘Member States may 
provide in their national legislation that such a period shall be granted only upon 
application by the third-country national concerned’ that an indication of the 
period for the enforcement of the return decision does not constitute an essential 
or constitutive element. 
21 It should be noted that Belgium has not made use of the option mentioned in the 
previous paragraph for the Member States and that the Council is not competent to 
set a time limit itself or adopt a new return decision. 
22 If the failure to grant a period is not an essential element of a return decision, the 
Council considers that the question arises as to the practical scope and 
enforceability of a return decision from which the element relating to the period 
would disappear.