Opinion of the Advocate General — ECLI:EU:C:2020:397
Date: 2020-05-28
Language of the case: French
Subject matter: Asylum policy;Justice and home affairs;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Belgium

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: 
18 March 2019 
Referring court: 
Cour du travail de Liège (Belgium) 
Date of the decision to refer: 
11 March 2019 
Appellant: 
B. 
Respondent: 
Centre public d’action sociale de Liège (CPAS) 
  
I. Facts of the case and main proceedings 
1 Ms B was born on 1 January 1955 in Guinea. She arrived in Belgium on 
2 September 2015 and submitted an application for asylum on 4 September 2015 
which was rejected by judgment of the Conseil du contentieux des étrangers 
(Council for asylum and immigration proceedings, Belgium) (‘the CCE’) of 
27 April 2016. 
2 Ms B suffers from several illnesses: high blood pressure; type 2 diabetes with 
diabetic neuropathy; and post-operative hyperthyroidism. 
3 On 26 September 2016, she submitted an application for regularisation (an 
application for leave to reside) on medical grounds under Article 9b of the Law of 
15 December 1980 on the entry in Belgian territory, residence, establishment and 
removal of foreign nationals (Moniteur belge of 31 December 1980, p. 14584) 
(‘the Law of 15 December 1980’). 
4 That application was declared admissible on 22 December 2016. Ms B was 
accordingly issued with a temporary residence permit and became eligible for 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-233/19 
 
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social assistance from the Centre public d’action sociale de Liège (Public Centre 
for Social Welfare, Liège) (‘the CPAS’). 
5 However, a decision of the Belgian Immigration Office of 28 September 2017, 
notified to the appellant on 23 October 2017, rejected the application for medical 
leave to reside on the merits. Ms B was notified of the order to leave Belgian 
territory and the Schengen area within 30 days on that same date. Ms B therefore 
had the right to reside in Belgium until 22 November 2017 and her stay became 
illegal on 23 November 2017. 
6 On 28 November 2017, Ms B brought an action before the judicial body having 
jurisdiction in the matter — the CCE — for annulment and suspension of the 
refusal to grant her leave to reside and the order to leave the national territory. The 
parties stated during the oral submissions that, to their knowledge, the action is 
still pending. 
7 By two decisions of 28 November 2017 (‘the contested decisions’), the CPAS 
withdrew Ms B’s entitlement to financial and medical social assistance with effect 
from 23 October 2017. It is apparent from the documents in the file that the 
medical assistance which has been withdrawn was intended for foreign nationals 
residing lawfully, contrary to the provision of emergency medical assistance 
granted in the case of illegally staying foreign nationals. The two contested 
decisions invited the applicant in the main proceedings to submit an application 
for emergency medical assistance if she considered it necessary. She was granted 
emergency medical assistance with follow-up care for chronic illnesses on 
1 November 2017. 
8 The courts having jurisdiction in matters relating to social assistance are the 
tribunal du travail (Labour Court, Belgium) and the cour du travail (Higher 
Labour Court, Belgium). By application of 28 December 2017, Ms B requested 
the tribunal du travail de Liège (Labour Court, Liège) to reinstate her entitlement 
to medical and social assistance for a foreign national residing lawfully with effect 
from 23 October 2017. 
9 On 1 February 2018, Ms B also submitted a fresh application for social assistance 
which was refused by decision of the CPAS of 20 February 2018. That refusal has 
been the subject of a new action currently pending before the tribunal de travail, 
with the result that the period at issue in the dispute is limited from 23 October 
2017 to 31 January 2018. 
10 By its judgment of 15 March 2018, the tribunal de travail interpreted the decision 
withdrawing medical assistance of 28 November 2017 as a decision refusing the 
grant of emergency medical assistance It found Ms B’s application to be 
unfounded, in so far as it concerns financial social assistance. However, it found it 
to be well founded with regard to emergency medical assistance and ordered the 
CPAS to uphold it in that regard. 
11 Ms B brought an appeal against that judgment. 
B. 
 
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II. Legal context 
1. Belgian law 
12 Under Article 9b of the Law of 15 December 1980, a foreign national residing in 
Belgium 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 the Minister or his representative for leave to reside in the 
Kingdom of Belgium. This constitutes a derogation from the general rule provided 
for in Article 9 according to which the application for leave to reside for more 
than three months must be submitted to the Belgian diplomatic or consular post 
competent for the place of residence or place of stay of the person concerned. 
13 The procedure involves two stages: an examination initially designed to be formal 
and quick, which results in a decision on admissibility and a temporary residence 
permit (which creates an entitlement to social assistance), followed by a decision 
on the merits. 
14 If the decision on the merits is unfavourable towards the person seeking 
regularisation, the latter may bring an appeal before the CCE. 
15 In accordance with that law and subject to the Court’s interpretation of the case-
law, ‘straightforward’ actions for suspension and annulment do not have 
suspensive effect, with the result that the foreign national may be staying illegally 
during the examination of those actions. 
16 Pursuant to Article 57(2) of the Basic Law of 8 July 1976 on public social welfare 
centres (CPAS), the consequence of an illegal stay is the refusal of all social 
assistance, except the provision of emergency medical assistance and, for families 
with minors, accommodation in a federal accommodation centre. 
17 Under Article 159 of the Belgian Constitution, however, ‘the courts may only 
apply the general, provincial and local decisions and regulations to the extent to 
which they are consistent with the laws’. 
18 Article 74/13 of the Law of 15 December 1980 also provides that, in taking an 
expulsion decision, the Minister or his representative is to take account of the state 
of health of the foreign national in question. 
2. EU law 
19 The Court held in the judgment of 18 December 2014 in Abdida (C-562/13, 
EU:C:2014:2453) (‘the Abdida judgment’): 
‘Articles 5 and 13 of Directive 2008/115/EC of the European Parliament and of 
the Council of 16 December 2008 on common standards and procedures in 
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Member States for returning illegally staying third-country nationals, taken in 
conjunction with Articles 19(2) and 47 of the Charter of Fundamental Rights of 
the European Union and Article 14(1)(b) of that directive, are to be interpreted as 
precluding national legislation which: 
– does not endow with suspensive effect an appeal against a decision ordering a 
third-country national suffering from a serious illness to leave the territory of a 
Member State, where the enforcement of that decision may expose that third-
country national to a serious risk of grave and irreversible deterioration in his 
state of health, and 
– does not make provision, in so far as possible, for the basic needs of such a 
third-country national to be met, in order to ensure that that person may in fact 
avail himself of emergency health care and essential treatment of illness during 
the period in which that Member State is required to postpone removal of the 
third-country national following the lodging of the appeal’. 
20 Article 19(2) and Article 47 of the Charter of Fundamental Rights of the European 
Union (‘the Charter’) and 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) are also relied on. 
3. Other provisions 
21 In addition, the applicant in the main proceedings invokes Articles 3 and 13 of the 
European Convention on Human Rights. 
III. Subject matter of the dispute in the main proceedings 
22 As far as the Court is concerned, the question at issue in the present case is 
whether it is necessary, pursuant to the Abdida judgment, to endow with 
suspensive effect the actions for annulment and suspension brought before the 
CCE and, in the affirmative, under what conditions. 
IV. Positions and forms of order sought 
1. The position of the applicant in the main proceedings 
23 Ms B claims that the judgment should be reversed and the CPAS ordered to grant 
her financial social assistance with effect from 23 October 2017. 
24 She relies on the absence of an enforceable order to leave the territory, taking the 
view that, by reason of the action brought before the CCE, the order to leave the 
territory which she received has no effect. 
B. 
 
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25 Ms B relies on the Abdida judgment, Article 159 of the Belgian Constitution, 
Articles 3 and 13 of the European Convention on Human Rights, Article 47 of the 
Charter, Article 6(5) and Article 9(1)(a) of Directive 2008/115 and Article 74/13 
of the Law of 15 December 1980 to claim a right to social assistance whilst her 
action directed against the refusal to uphold her application for medical leave to 
reside is pending before the CCE. 
26 She places great emphasis on drawing attention to the seriousness of her illnesses. 
27 She also puts forward the argument that, in accordance with the Abdida judgment, 
a straightforward serious and arguable complaint should guarantee the suspensive 
effect of the action brought before the CCE. Ms B considers her complaints to be 
serious, in so far as she claims before the CCE that no valid reasons were given 
for the medical evaluation carried out by the Immigration Office doctor on which 
the refusal to grant leave to reside is based. 
28 She concludes that her action before the CCE has suspensive effect, that she can 
no longer therefore be considered to be staying illegally and that she is entitled to 
financial social assistance. 
2. The position of the CPAS 
29 The CPAS contends that the contested judgment and the decisions under 
challenge should be upheld. 
30 The CPAS considers that Ms B is staying illegally within the meaning of 
Article 57(2) of the Law of 8 July 1976 and that there is no reason to disregard the 
order that she was given to leave the national territory issued in accordance with 
Article 159 of the Constitution. 
31 As for the Abdida case-law, the CPAS argues that the lesson to be drawn from that 
judgment is not that the action has automatic suspensive effect but rather that it 
has suspensive effect only if the foreign national demonstrates the seriousness of 
his illness and the serious risk of grave deterioration in his state of health if he is 
returned to the country of origin. 
V. Findings of the cour du travail 
32 The cour du travail is therefore called upon to rule on the suspensive effect of the 
actions pending before the CCE. 
33 Academic legal writing has provided a detailed summary of several complex 
issues and reference must be made to this review. 1 The cour de travail notes, 
however, that it refers to that publication because it provides a panoramic, specific 
 
1 MAES, C., in Aide sociale — Intégration sociale. Le droit en pratique, Brussels, la Charte, 
Second edition, to be published shortly. 
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and exhaustive view but that, at this stage, it has not yet decided on the course of 
action to adopt, does not follow the views expressed by the author and will not 
predetermine the outcome of the proceedings. 
‘Scope of the medical review to be carried out by the social courts 
x The Abdida judgment does not endow with suspensive effect an action 
directed against an expulsion measure taken following a negative decision 
adopted under Article 9b, only “an appeal against a decision ordering a 
third-country national suffering from a serious illness to leave the territory 
of a Member State, where the enforcement of that decision may expose that 
third-country national to a serious risk of grave and irreversible deterioration 
in his state of health”. 
Must the social courts merely establish that an action exists in order to 
endow it with suspensive effect 2 or it is necessary to verify whether the 
conditions attached to suspensive effect laid down in the Abdida judgment 
have been met? 
Case-law is divided on that question. 
One line of thinking considers that it is necessary only to establish the 
existence of an action in order to endow it with suspensive effect. That 
position is based on the fact that the Court of Justice adopted a general view 
“with regard to all persons subject to an order to leave the national territory 
and who have brought an action directed against a refusal to grant leave to 
reside pursuant to Article 9b”, that it “is materially impossible to know ‘in 
advance’ whether a situation is exceptional in that respect such that the 
action must be given suspensive effect. It cannot be considered, a priori, that 
the action would have suspensive effect for some applicants but not others” 
and that “that is the assessment of the Conseil du Contentieux des étrangers. 
To deprive a foreign national of the right to an effective remedy would 
amount to predetermining the assessment that the Conseil du Contentieux 
will carry out of the complaints put forward”.  
By contrast, another line of thinking considers that suspensive effect may be 
endowed only if the conditions laid down in the Abdida judgment are met 
and that the social courts thus enjoy a prima facie degree of discretion, to the 
extent that the suspension is justified only if the application is manifestly 
unfounded or the medical evidence is manifestly inadequate. 
We believe that that latter view should be adopted. 
 
2 To that effect: NISSEN, T., ‘Aide Sociale et régularisation 9 ter: le point sur la question après 
l’arrêt Abdida’, Fiche pratique de l’accueil 16, CIRE, 2015, which considers that any action 
brought against a negative decision adopted under Article 9b must be given suspensive effect; 
TSOURDI, L., ‘Régularisation médicale en Belgique: quelles répercussions pour l’arrêt 
Abdida?’, Newsletter EDEM, May 2015, p. 3. 
B. 
 
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Indeed, the third paragraph of Article 288 of the Treaty on the Functioning 
of the European Union provides: ‘A directive shall be binding, as to the 
result to be achieved, upon each Member State to which it is addressed, but 
shall leave to the national authorities the choice of form and methods’. 
On the basis of that provision, the EU Court of Justice considers that 
national courts are bound ‘to interpret national law, so far as possible, in the 
light of the wording and the purpose of the directive concerned in order to 
achieve the result sought by the directive ... The requirement for national 
law to be interpreted in conformity with Community law is inherent in the 
system of the Treaty, since it permits the national court, for the matters 
within its jurisdiction, to ensure the full effectiveness of Community law 
when it determines the dispute before it. ... In this instance, the principle of 
interpretation in conformity with Community law thus requires the referring 
court to do whatever lies within its jurisdiction, having regard to the whole 
body of rules of national law, to ensure that [the directive] is fully 
effective’. 3 
In verifying whether the conditions laid down by the EU Court of Justice 
have been met, the social court is not disregarding the effectiveness of the 
action brought against the order to leave the national territory but rather, on 
the contrary, ensuring the application, within the limits of its competences 
and in the context of the dispute before it, of directly applicable EU law in a 
manner which is consistent with the interpretation of that law by the EU 
Courts. In addition, in so far as the prima facie examination merely verifies 
whether the complaint is manifestly well founded, we take the view that the 
position is fully consistent with the requirements set out by the European 
Court of Human Rights which links the effectiveness of an action with 
automatic suspensive effect which should be endowed in the event of a 
breach of Article 3 of the European Convention on Human Rights, provided 
that there is an arguable complaint’. 
34 In reality, it is apparent that there is a third possible interpretation of the Abdida 
judgment, according to which it is for the labour courts to verify, not whether 
there is a serious and arguable complaint, but to go so far as to examine whether 
the enforcement of an expulsion decision may expose the third-country national 
concerned to a serious risk of grave and irreversible deterioration in his state of 
health. 
35 That third interpretation raises other problems, however. 
36 While the labour courts are familiar with addressing the question of impossibility 
of return on medical grounds, the crux of the issue is social assistance (granted, by 
way of exception, in the case of an illegally staying foreign national) in respect of 
 
3 Judgment of 5 October 2004, Pfeiffer and Others (C-397/01 to C-403/01, EU:C:2004:584, 
paragraphs 110 to 118 and the case-law cited). 
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which they are the courts having jurisdiction. When it comes to determining 
whether an action brought before the CCE against a refusal to grant leave to reside 
should be endowed with suspensive effect, the issue concerns whether the 
residence in question is lawful. In turn, where the residence is considered lawful, 
there is entitlement to social assistance. However, proceedings for judicial review 
of the legality of the residence come within the jurisdiction of another court 
specialised in that field, the CCE. 
37 As can be seen, the difficulty arises in part from the fact that the court before 
which the suspensive effect has been raised (the labour court, having jurisdiction 
to grant social assistance) is not the court before which the action has been 
brought (the CCE, having jurisdiction in matters relating to the right of residence). 
38 Likewise, in the interpretation according to which the labour court must verify 
whether there is an arguable complaint, that duality results in general uneasiness 
and a lack of legitimacy on the part of the labour courts to assess the chances of 
success of an action brought before the CCE, in matters in which they are not the 
proper court and in which they are not as specialised to the same degree as in 
matters relating to social law. 
39 What is the scope of the review which must be carried out by the labour court 
before which the suspensive effect of an action brought before another court has 
been raised? 
40 Of course, that question could be brushed aside by arguing that it is a problem of 
domestic law, falling outwith the jurisdiction of the EU Court of Justice. The cour 
de travail nevertheless chooses to make a reference for a preliminary ruling to the 
Court of Justice, in so far as that question also concerns clarification of the scope 
of Article 47 of the Charter of Fundamental Rights of the European Union. Does 
the right to an effective remedy before court A automatically create an entitlement 
to assistance, which comes within the jurisdiction of court B? Does the right to an 
effective remedy before court A mean that the complaints raised before it should 
be examined by court B? Does the right to an effective remedy before court A 
require judicial review, which comes within the jurisdiction of that court, by court 
B? 
VI. Question referred for a preliminary ruling 
41 In order to clarify this important matter, the following question should be referred 
to the Court of Justice for a preliminary ruling: 
42 ‘Must Articles 5 and 13 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, read in the 
light of Articles 19(2) and 47 of the Charter of Fundamental Rights of the 
European Union, and Article 14(1)(b) of that directive, read in the light of the 
B. 
 
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judgment in Case C-562/13, Abdida, delivered on 18 December 2014 by the Court 
of Justice of the European Union (Grand Chamber),  
be interpreted as endowing with suspensive effect an appeal brought against a 
decision ordering a third-country national suffering from a serious illness to leave 
the territory of a Member State, in the case where the appellant claims that the 
enforcement of that decision is liable to expose him to a serious risk of grave and 
irreversible deterioration in his state of health:  
– without it being necessary to examine the appeal, its mere introduction being 
sufficient to suspend the enforcement of the decision ordering the third-country 
national to leave the territory of that Member State; or 
– following a marginal review as to whether there is an arguable complaint, lack 
of grounds for inadmissibility or whether the action brought before the Conseil 
du contentieux des étrangers is manifestly unfounded; or 
– following a full and comprehensive judicial review carried out by the labour 
courts in order to determine whether the enforcement of that decision is indeed 
liable to expose the appellant to a serious risk of grave and irreversible 
deterioration in his state of health?’