Opinion of the Advocate General — ECLI:EU:C:2021:103
Date: 2021-02-10
Language of the case: French
Subject matter: Asylum policy;Citizenship of the Union;Right of entry and residence;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:  
27 September 2019 
Referring court:  
Cour constitutionnelle (formerly Cour d’arbitrage) (Belgium) 
Date of the decision to refer:  
18 July 2019 
Applicants:  
Ordre des barreaux francophones et germanophone 
Association pour le droit des Étrangers ASBL 
Coordination et Initiatives pour et avec les Réfugiés and Étrangers 
ASBL 
Ligue des Droits de l’Homme ASBL 
Vluchtelingenwerk Vlaanderen ASBL 
Defendant:  
Conseil des ministres 
  
I. Subject matter of the main proceedings 
1 By two separate applications, the Ordre des barreaux francophones et 
germanophone (Council of French- and German-language Bars; ‘the OBFG’), on 
the one hand, and the ASBL Association pour le droit des Étrangers, the ASBL 
Coordination et Initiatives pour et avec les Réfugiés and Étrangers, the ASBL 
Ligue des Droits de l’Homme and the ASBL Vluchtelingenwerk Vlaanderen, on 
the other hand, brought actions seeking the annulment, in whole or in part, of the 
loi du 24 février 2017 modifiant la loi du 15 décembre 1980 sur l’accès au 
territoire, le séjour, l’établissement et l’éloignement des étrangers afin de 
renforcer la protection de l’ordre public et de la sécurité nationale (Law of 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-718/19 
 
2  
24 February 2017 amending the Law of 15 December 1980 on the admission, 
residence, establishment and removal of foreign nationals in order to enhance 
protection of public policy and national security) (published in the Moniteur belge 
(Belgian Official Journal) of 19 April 2017, p. 51890) 
(http://www.ejustice.just.fgov.be/eli/loi/2017/02/24/2017011464/justel) (‘the 
contested Law’). The cases are numbered 6749 and 6755 respectively and have 
been joined. 
2 The contested law amends the loi du 15 décembre 1980 sur l’accès au territoire, le 
séjour, l’établissement et l’éloignement des étrangers (Law of 15 December 1980 
on the admission, residence, establishment and removal of foreign nationals) 
(published in the Moniteur belge of 31 December 1980, p. 14584) 
(http://www.ejustice.just.fgov.be/eli/loi/1980/12/15/1980121550/justel) (‘the Law 
of 15 December 1980’). 
II. The contested Law 
3 The Law of 24 February 2017 ‘seeks to make removal policy more transparent, 
coherent and effective, in particular where the aim is to safeguard public policy or 
national security, whilst respecting the fundamental rights of the persons 
concerned’ (Doc. parl., Chambre, 2016-2017, DOC 54-2215/001, p. 4). In 
particular ‘it gives the authorities the means to act more swiftly and effectively 
where public policy or national security is threatened’ (ibid.). 
4 The preamble states as follows: 
‘In order to achieve those objectives, it is intended: 
– to carry out an in-depth review of the regime for return and expulsion and to 
replace it with separate regimes according to the foreign national’s residence 
status; 
– to lay down more transparent, coherent and effective rules to protect public 
policy or national security; 
– to establish a mechanism to limit so far as possible the repeated adoption of 
turning back or removal measures; 
– to determine clearly the authorities that have power, during border controls, to 
take decisions refusing entry and annulling or revoking visas and the situations 
in which they are authorised to exercise that power’ (ibid., p. 5). 
5 The contested Law partially transposes the following directives, among others: 
– Directive 2004/38/EC of the European Parliament and of the Council of 
29 April 2004 on the right of citizens of the Union and their family members to 
move and reside freely within the territory of the Member States, amending 
ORDRE DES BARREAUX FRANCOPHONES ET GERMANOPHONE AND OTHERS 
 
3 
Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 
68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 
90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77); 
– 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). 
III. The provisions at issue 
6 The contested Law amends numerous provisions of the Law of 15 December 
1980. The Cour constitutionnelle (Constitutional Court) found most of the pleas in 
law objecting to that Law to be unfounded and therefore dismissed the actions for 
annulment to that extent. However, that court finds that it must ask the Court of 
Justice to interpret a number of provisions of EU law before ruling on the 
remaining pleas in law. It has therefore stayed examination of certain pleas in law 
concerning Articles 28, 29, 30, 31 and 32 of the contested Law. 
7 Articles 28, 29, 30, 31 and 32 of the contested Law insert Articles 44quater to 
44octies, which provide as follows, into the Law of 15 December 1980: 
8 Article 44quater: 
‘An EU citizen or a member of his or her family cannot be forcibly removed 
so long as the period under Article 44ter has not expired. 
To avoid any risk of absconding during the period referred to in 
Article 44ter, the EU citizen or the member of his or her family may be 
required to comply with preventive measures. The King is authorised to 
determine those measures by decree debated in the Conseil des ministres 
(Council of Ministers)’. 
9 Article 44quinquies: 
‘Paragraph 1. The Minister or a person delegated by the Minister shall take 
all the measures necessary to enforce the order to leave the territory where: 
(1) the EU citizen or the member of his or her family has not been given a 
time limit by which to leave the territory of the Kingdom; 
(2) the EU citizen or the member of his or her family has not left the 
territory of the Kingdom within the period given to that person;  
(3) before expiry of the period given in which to leave the territory of the 
Kingdom the EU citizen or the member of his or her family presents a risk 
of absconding, has failed to comply with the preventive measures imposed 
or represents a threat to public policy or national security. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-718/19 
 
4  
Paragraph 2. Where the EU citizen or the member of his or her family 
objects to his or her removal or presents a risk of dangerousness when being 
removed, he or she shall be forcibly returned, with an escort if necessary. 
Coercive measures may then be used in relation to that person, in 
compliance with Articles 1 and 37 of the loi du 5 août 1992 sur la fonction 
de police (Law on policing of 5 August 1992). 
Where the removal is effected by air, the measures shall be taken in 
accordance with the Common Guidelines on security provisions for joint 
removals by air annexed to Decision 2004/573/EC. 
Paragraph 3. By decree debated in the Council of Ministers, the King shall 
designate the entity responsible for supervising forced returns and shall 
determine the arrangements for that supervision. That entity shall be 
independent of the removal authorities’. 
10 Article 44sexies 
‘Where justified by the circumstances of each case, the Minister or a person 
delegated by the Minister may temporarily postpone the removal. That 
person shall inform the person concerned. 
In order to avoid any risk of absconding, the EU citizen or the member of his 
or her family may be required to comply with preventive measures. The 
King is authorised to determine those measures by decree debated in the 
Council of Ministers. 
The Minister or a person delegated by the Minister may, in those situations, 
place the EU citizen or the member of his or her family under house arrest 
for the period necessary to carry out that measure’. 
11 Article 44septies: 
‘Paragraph 1. Where required for reasons of public policy, national security 
or public health, and unless other less coercive measures can be applied 
effectively, EU citizens and members of their families may, in order to 
ensure that the removal measure is carried out, be held for the period strictly 
necessary to carry out the measure, which may not exceed two months. 
The Minister or a person delegated by the Minister may nevertheless extend 
the period for which the person is held by two-month periods, where the 
procedures necessary for removal of the foreign national have been 
undertaken within seven working days of the EU citizen or the member of 
his or her family being held, have been pursued with all due diligence and 
there is still a possibility of effectively removing the person concerned 
within a reasonable time. 
ORDRE DES BARREAUX FRANCOPHONES ET GERMANOPHONE AND OTHERS 
 
5 
After a first extension, the decision to extend the period of holding may be 
taken only by the minister. 
After five months, the EU citizen or the member of his or her family must be 
released. Where required in order to safeguard public policy or national 
security, the period of holding may be extended by one month each time 
although the total period of holding may not exceed eight months. 
Paragraph 2. The EU citizen or the member of his or her family referred to 
in Paragraph 1 may appeal against the decision to hold him or her, in 
accordance with Article 71 et seq.’. 
12 Article 44octies: 
‘The following persons may not be held within the meaning of 
Article 74(8)(2): 
(1) EU citizens who are unaccompanied minors; 
(2) members of the family of an EU citizen who are unaccompanied 
minors; 
(3) families of EU citizens where those families consist of at least one 
minor’. 
IV. Pleas in law and arguments of the parties 
1. Article 28 of the contested Law (Article 44quater of the Law of 15 December 
1980) 
13 The first part of the fifth plea in case no 6749 alleges infringement of the rights to 
free movement and freedom of establishment for European citizens and of 
Directive 2004/38 in so far as preventive measures to prevent a risk of absconding 
cannot be imposed on EU citizens or foreign nationals treated as EU citizens. In 
the alternative, the OBFG argues that the contested provision fails to define the 
risk of absconding objectively on the basis of clear criteria. It states that the 
concept of ‘risk of absconding’ is given a precise meaning in EU law in relation to 
third-country nationals and that it is unacceptable that EU citizens and foreign 
nationals treated as EU citizens should be treated less favourably than third-
country nationals. 
The Council of Ministers takes the view that the plea is inadmissible in so far as it 
alleges infringement of freedom of establishment, because, taken in the context of 
EU law, that freedom is intended to guarantee the right of undertakings and the 
self-employed to become established on the same terms as nationals of the host 
Member State. It also notes that the applicant has not stated in what way that 
freedom has been infringed. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-718/19 
 
6  
On the concept of ‘risk of absconding’, according to the Council of Ministers that 
concept as applied in the context of the detention of asylum seekers awaiting 
transfer to another European State cannot be transposed to the present context. 
The applicant submits that the Law is ambiguous on what the ‘preventive 
measures’ might be and argues that, since they are intended to prevent a risk of 
absconding, they concern, in essence, a limitation on the right to come and go 
freely. 
14 By the second part, the applicant claims that the contested provision infringes the 
fundamental right to liberty guaranteed by Article 12 of the Constitution, Article 5 
of the European Convention on Human rights (‘ECHR’) and Article 6 of the 
Charter of Fundamental Rights of the European Union (‘the Charter’), and the 
freedom of movement and establishment. It argues that the detention of an EU 
citizen or a foreign national treated as an EU citizen cannot be justified on the 
basis of a ‘risk of absconding’ since the removal measure can be neither taken nor 
carried out against that person, by virtue of the protection granted by Article 39/79 
of the Law of 15 December 1980 and by virtue of Article 31 of Directive 2004/38. 
The Council of Ministers contends that the applicant misreads the contested 
provision by equating ‘preventive measures’ with detention measures. It notes that 
detention measures are laid down by a different provision, that is to say, 
Article 44septies of the Law of 15 December 1980. It adds that the fact that 
Directive 2004/38 does not authorise the Member States to adopt preventive 
measures does not mean that they are formally prohibited from doing so. 
The applicant emphasises that preventive measures are necessarily a form of 
carrying out a removal measure, since their purpose is precisely to ensure that it is 
carried out. It observes that carrying out measures in that way is expressly 
prohibited. 
15 By the third part, the applicant contends that the contested provision fails to 
respect the principle of the separation of powers, under Articles 33, 34, 36, 37, 
105 and 108 of the Constitution, in so far as it gives the King powers in respect of 
detention and alternatives to detention in the form of measures that restrict the 
right to liberty and the free movement of EU citizens and persons treated as EU 
citizens. 
The Council of Ministers is of the view that, provided the preventive measures do 
not restrict the freedom to come and go, they can be delegated to the King. 
2. Article 29 of the contested Law (Article 44quinquies of the Law of 
15 December 1980) 
16 The first part of the sixth plea in law in case no 6749 alleges infringement of 
Article 31(2) of Directive 2004/38, in so far as that provision of the directive 
states that EU citizens and members of their families may only be forcibly 
ORDRE DES BARREAUX FRANCOPHONES ET GERMANOPHONE AND OTHERS 
 
7 
removed and those foreign nationals may be deprived of the protection against 
forced removal during the period for appeal and while an appeal is being 
examined only on imperative grounds of public security under Article 28(3) of the 
directive. The applicant contends that the contested provision, by contrast, allows 
the Minister or a person delegated by the Minister to have the order to leave the 
territory enforced on other grounds. 
The Council of Ministers considers that it is necessary to have regard to 
Article 39/79 of the Law of 15 December 1980, according to which the 
administrative authority may forcibly remove an EU citizen or a member of his or 
her family during examination of an appeal brought by that person against the 
decision ending the right of residence only if it does so on imperative grounds of 
national security. 
The applicant contends that the interpretation advanced by the Council of 
Ministers is untenable because it is manifestly contrary to the terms of the Law. 
3. Article 31 of the contested Law (Article 44septies of the Law of 15 December 
1980) 
17 The eighth plea in law in case no 6749 alleges infringement of Article 12 of the 
Constitution in conjunction with Article 5 ECHR, Article 6 of the Charter and the 
principles of freedom of movement and establishment and the effectiveness of 
Directive 2004/38. The OBFG criticises Article 31 of the contested Law for, on 
the one hand, establishing a period of detention of two months, which, it argues, is 
too long where the issue is merely one of removing a person to another Member 
State (first part) and, on the other hand, failing to lay down clear criteria for 
determining the period strictly necessary to carry out the measure (second part). 
The Council of Ministers contends that, given the detailed list of the situations in 
which a foreign national may be detained, both the substantive and procedural 
provisions contested satisfy the requirements under Article 5(1)(f) of the European 
Convention on Human Rights. That party notes that the express condition that the 
detention may not be longer than the time strictly necessary means that the 
measure must be applied in good faith, and the two-month maximum period is 
therefore neither the rule nor a dispensation to authorise detention for that period 
in all cases. 
According to the applicant the Council of Ministers failed to have regard to the 
specific circumstances of EU citizens, such as, amongst others, the fact that they 
have a fundamental right to move freely within the European Union and that the 
exercise of free movement must be facilitated. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-718/19 
 
8  
4. Articles 28 to 32 of the contested Law (Articles 44quater to 44 octies of the 
Law of 15 December 1980) 
18 The first part of the ninth plea in case no 6749 alleges, inter alia, that Articles 28 
to 32 of the contested Law infringe the principles of freedom of movement and 
establishment and Directive 2004/38, in so far as, according to those sources of 
law, preventive measures designed to avoid a risk of absconding may not be 
imposed on EU citizens and foreign nationals treated as EU citizens. In the 
alternative, the OBFG contends that, if it had to be found that the directive does 
authorise preventive measures of that kind, the contested provisions should be 
found to be unlawful because they do not lay down legally defined objective 
criteria to determine the risk of absconding. It claims that the concept of ‘risk of 
absconding’ has a particular meaning in EU law in relation to third-country 
nationals. It contends that there can be no grounds for treating EU citizens and 
persons treated as EU citizens less favourably than third-country nationals. 
The Council of Ministers refers to the line of argument which it set out in 
response to the first part of the fifth plea. 
19 The second part of the plea alleges infringement of Article 22 of the Constitution 
in conjunction with Articles 17 and 23 of the International Covenant on Civil and 
Political Rights, Article 8 ECHR, Articles 7 and 33 of the Charter and Articles 27 
and 28 of Directive 2004/38, in so far as the contested provisions use overly 
imprecise, vague and diffuse concepts such as ‘reasons of public policy, national 
security or public health’, ‘serious reasons of public policy or national security’ 
and ‘imperative reasons of national security’ on which to base a decision 
terminating residence or an order to leave the territory. 
The Council of Ministers fails to understand how the legislature could have 
infringed Articles 27 and 28 of Directive 2004/38 given that the contested Law 
uses the same terms as the directive. 
20 The third part of that plea alleges infringement of the principle of the separation of 
powers, under Articles 33, 34, 36, 37, 105 and 108 of the Constitution. The OBFG 
submits that the detention measures and alternatives to detention restrict the right 
to liberty and of free movement of EU citizens and foreign nationals treated as EU 
citizens. 
The Council of Ministers refers to the line of argument which it set out in 
response to the third part of the fifth plea and to the seventh plea. 
21 The first three parts of the tenth plea in law in case no 6749 allege that Article 33 
of the contested Law infringes the freedom of movement and of establishment of 
EU citizens and the effectiveness of Directive 2004/38, in so far as it authorises an 
entry ban to be attached automatically to an order to leave the territory on grounds 
of public policy (first part), in so far as it authorises an entry ban of more than five 
years in length to be imposed if the EU citizen or the member of his or her family 
represents a serious threat to public policy or national security, which is always 
ORDRE DES BARREAUX FRANCOPHONES ET GERMANOPHONE AND OTHERS 
 
9 
the case if an order to leave the territory has been imposed on the foreign national 
concerned (second part), and in so far as it permits the Minister or a person 
delegated by the Minister to impose an entry ban for several years with no 
requirement to give specific precise reasons to believe that the foreign national 
concerned will continue to represent a serious threat affecting one of the 
fundamental interests of society (third part). 
The Council of Ministers believes that the plea is inadmissible to the extent that it 
alleges infringement of the principle of freedom of establishment and 
infringement of the effectiveness of Directive 2004/38, because the applicant has 
not indicated which provisions of the directive it claims are infringed. 
It argues that the applicant has misconstrued the contested provision, which 
provides for an option to issue an entry ban but not an obligation to do so, and that 
it therefore cannot be argued that the contested provision authorises an entry ban 
to be imposed automatically. According to the Council of Ministers, it is incorrect 
to say that the Minister or a person delegated by the Minister is authorised to 
impose an entry ban of more than five years in all cases, without having to state 
reasons for that length other than using the same findings that led to adoption of 
the order to leave the territory. It states that the aforementioned directive provides 
that an entry ban can be imposed on EU citizens or members of their families for 
reasons of public policy, public security or public health. Lastly it adds that the 
authorities themselves carry out an individual examination for each decision, and 
infers therefrom that any infringement of the principle of proportionality would 
arise not from the contested Law but from its application by the competent 
authority. 
The applicant asserts that the reading given by the Council of Ministers to the 
contested provision is not self-evident and that the Council of Ministers is 
perpetuating a degree of ambiguity indicative of the vagueness of the applicable 
thresholds and the scope of the concepts used in the Law. The applicant also notes 
that by maintaining that position the Council of Ministers is at odds with the 
second subparagraph of Article 27(2) of Directive 2004/38 and the case-law of the 
Court of Justice of the European Union. 
22 The fourth part of the tenth plea alleges infringement of Articles 10, 11 and 191 of 
the Constitution, read in conjunction with Article 26 of the International Covenant 
on Civil and Political Rights, Article 14 ECHR, Article 1 of supplementary 
Protocol No 12 to that convention and Articles 20 and 21 of the Charter. 
According to the OBFG, the contested provision discriminates between EU 
citizens and third-country nationals, for whom Article 74/11 of the Law of 
15 December 1980 prevents any of the public-policy grounds that could form the 
basis for a decision ending a stay or an order to leave the territory from also 
forming the basis for a five-year entry bar. 
The Council of Ministers contends that the applicant is misreading the Law and 
that the difference in treatment which it alleges does not exist. The Council of 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-718/19 
 
10  
Ministers refers to the fourth subparagraph of Article 74/11(1) of the Law of 
15 December 1980.  
According to the applicant, the Council of Ministers is obscuring the fact that 
Article 74/11 of the Law of 15 December 1980 prevents any of the public-policy 
grounds that could form the basis for a decision terminating residence or an order 
to leave the territory from also forming the basis for an entry bar of more than five 
years. The applicant notes that, in order to apply an entry bar of more than five 
years, that article requires a higher severity threshold than that required to make 
an order to leave the territory, whereas, in relation to EU citizens, the authority is 
authorised to make an order to leave the territory and an entry bar for more than 
five years on identical grounds. 
23 The applicants in case 6755 advance a forty-seventh plea alleging that Articles 28 
to 31 of the contested Law infringe Articles 10 and 11 of the Constitution, 
whether or not read in conjunction with Articles 20 and 21 TFEU and the 
principle of legal certainty. They claim that the contested provisions, in breach of 
the Treaty provisions referred to, authorise the King to establish restrictions on the 
free movement of EU citizens which are not provided for by Directive 2004/38. 
Moreover, the provision unjustifiably distinguishes between EU citizens and their 
family members who are subject to measures taken under Article 44quater of the 
Law of 15 December 1980, and other EU citizens and their family members, in so 
far as the Law does not define the ‘risk of absconding’ criterion (first part). The 
contested Articles 29 and 31 infringe the principle of legality in so far as they 
authorise the King to adopt measures which restrict liberty (second part). Lastly, 
the applicants allege legal uncertainty because it is not clear whether measures can 
already be taken against EU citizens and their family members who are at risk of 
absconding, when no implementing decree has yet been adopted. Specifically, 
they are prevented from knowing which provisions apply where there is a risk of 
absconding: the measures determined by the King or the measures taken under the 
Law by the Office des étrangers (Immigration Office, Belgium) (third part). 
The Council of Ministers observes that, by definition, the contested provisions do 
not concern EU citizens and their family members who, according to Directive 
2004/38, cannot benefit from protection against expulsion and whose right to 
freedom of movement is subject to limitations within the meaning of Article 21 
TFEU. It also draws attention to the fact that the definition of ‘risk of absconding’ 
in Article 1(11) of the Law of 15 December 1980 applies not only to third-country 
nationals but also to EU citizens and their family members. Furthermore, it is 
apparent from the travaux préparatoires that the measures that the King can take 
may not entail any restriction on freedoms. The Council of Ministers refers to the 
measures listed in Article 110quaterdecies of the Royal Decree of 8 October 
1981. Lastly, the Council of Ministers asserts that, by virtue of 
Article 44quinquies of the Law of 15 December 1980, there are clear limitations 
on the application of those measures, to the extent that there is, in its view, no 
legal uncertainty. 
ORDRE DES BARREAUX FRANCOPHONES ET GERMANOPHONE AND OTHERS 
 
11 
24 The applicants in case no 6755 advance a forty-eighth plea alleging that 
Articles 28 to 31 of the contested Law infringe Articles 10 and 11 of the 
Constitution, read in conjunction with Article 5 ECHR and Article 6 and 
Article 52(3) of the Charter. They claim that the contested provisions 
insufficiently define the ‘risk of absconding’. The definition given in Article 1(11) 
of the Law of 15 December 1980 applies only to third-country nationals and, what 
is more, does not define what constitutes the ‘objective and genuine factors’ to 
which it refers. Furthermore, the contested Articles 28 and 30 establish a 
difference in treatment between EU citizens and their family members on whom 
preventive measures can be imposed where there is a risk of absconding, and other 
foreign nationals. 
The Council of Ministers believes that the contested provisions provide sufficient 
protection against arbitrary action. The person delegated by the competent State 
Secretary must base his or her decision on objective and genuine factors before 
being able to invoke any risk of absconding, and an action for annulment is 
available against the decision before the Conseil du Contentieux des Étrangers 
(Council for asylum and immigration proceedings, Belgium). 
25 The applicants in case no 6755 advance a fiftieth plea alleging that Articles 28 to 
31 of the contested Law infringe Articles 10 and 11 of the Constitution, whether 
or not read in conjunction with Articles 5 and 13 ECHR and Article 2 of 
supplementary Protocol No 4 to that convention. They contend that the contested 
provisions are not sufficiently accessible, precise and foreseeable to prevent all 
risk of arbitrary action, specifically because the concept of ‘risk of absconding’ is 
very vague. When reviewing legality, the Conseil du Contentieux des Étrangers 
(Council for asylum and immigration proceedings) does not examine the 
applicant’s current situation, and that review is therefore not an effective legal 
remedy and does not satisfy the convention provisions referred to (first part). 
Moreover, under Article [31] of Directive 2004/38 EU citizens and their family 
members may not be expelled whilst proceedings are pending (second part). 
Lastly, they argue, the period for which EU citizens and their family members 
may be detained is unreasonable and there is an unjustified equality of treatment 
for EU citizens and third-country nationals (third part). 
The Council of Ministers calls to mind first of all the fact that Article 5 ECHR 
does not apply to measures involving merely a restriction on liberty. It argues inter 
alia in that respect that this is not a matter of a deprivation of liberty, since for that 
purpose the Law of 15 December 1980 uses the concepts of ‘holding’ and 
‘detention’. An obligation to stay in a specific place does not, it argues, involve 
any deprivation of liberty, and Article 5 ECHR therefore does not apply. In 
addition, an appeal is available to the Conseil du Contentieux des Étrangers 
(Council for asylum and immigration proceedings) and proceedings for interim 
relief can also be brought before a civil court where an individual’s right is 
unlawfully infringed. Lastly, the Council of Ministers contends that the measure 
satisfies the requirements of Article 2 of supplementary Protocol No 4 to the 
aforementioned convention. What is more, Article 44septies of the Law of 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-718/19 
 
12  
15 December 1980 explicitly provides that a deprivation of liberty may be 
imposed exceptionally, with the effect that the other preventive measures, by 
definition, do not constitute a deprivation of liberty. Article 44septies provides for 
a speedy appeal to a court, with the result that the requirements of the convention 
provisions referred to are satisfied. The other preventive measures can be imposed 
only once the decision to refuse or withdraw the right of residence has become 
final. In respect of the second part, the Council of Ministers refers to Article 39/79 
of the Law of 15 December 1980, from which it can be seen that as a general rule 
the contested decision has suspensory effect and satisfies the requirements of 
Directive 2004/38. As regards the third part, the Council of Ministers believes that 
the legislature has provided sufficient safeguards to prevent an infringement of 
Article 5 of the European Convention on Human Rights. 
V. Assessment by the referring court 
Articles 28 to 31 of the contested Law (Articles 44quater to 44 septies of the 
Law of 15 December 1980) 
26 The preamble to this part of the contested Law states that those provisions, ‘in the 
interests of transparency and legal certainty, clarify the measures that can be taken 
in respect of EU citizens and members of their families in order to remove them 
from the territory of the Kingdom’, that they ‘seek to establish an effective policy 
for removing EU citizens and members of their families, ensuring that it is 
humane and fully respects their fundamental rights and dignity’ and that ‘the 
intention is to guarantee a removal regime for EU citizens and members of their 
families that is no less favourable than that for third-country nationals’ (Doc. 
parl., Chambre, 2016-2017, DOC 54-2215/001, pp. 37 and 38; DOC 54-2215/003, 
p. 4). 
27 The Constitutional Court will examine those pleas in law grouped as follows: 
– the ‘preventive measures’ intended to prevent a ‘risk of absconding’; 
– forced removal before passing of the time limit; 
– detention and alternatives to detention. 
1. ‘Preventive measures’ and the ‘risk of absconding’ 
28 Article 44quater, inserted in the Law of 15 December 1980 by Article 28 of the 
contested Law, provides that ‘preventive measures’ can be imposed on an EU 
citizen or the member of his or her family against whom an order to leave the 
territory has been issued, before the time limit within which that person must 
leave the territory of the Kingdom has passed, in order to ‘avoid any risk of 
absconding’. Article 44quinquies, inserted in the Law of 15 December 1980 by 
Article 29 of the contested Law, provides in paragraph 1(3) that the Minister or a 
person delegated by the Minister is to take all the measures necessary to enforce 
ORDRE DES BARREAUX FRANCOPHONES ET GERMANOPHONE AND OTHERS 
 
13 
the order to leave the territory where, amongst other situations, the foreign 
national concerned has failed to comply with the preventive measures imposed. 
Article 44sexies, inserted in the Law of 15 December 1980 by Article 30 of the 
contested Law, provides that, ‘in order to avoid any risk of absconding’, 
‘preventive measures’ may be imposed on the EU citizen or the member of his or 
her family where, after the passing of the time limit or where there is no time 
limit, the forced removal is temporarily postponed by the Minister or a person 
delegated by the Minister. Articles 44quater and 44sexies authorise the King to 
determine those measures by decree debated in the Council of Ministers. 
Article 44sexies also provides that the Minister or a person delegated by the 
Minister may place the person concerned under house arrest while that measure is 
being carried out. 
29 The applicants argue in particular that Article 44quater of the Law of 
15 December 1980 infringes Articles 10 and 11 of the Constitution, read in 
conjunction with Directive 2004/38, with the right of EU citizens to freedom of 
movement and with Articles 105 and 108 of the Constitution, because under EU 
law preventive measures cannot be imposed on EU citizens and members of their 
families in order to avoid the risk of absconding during the period given in which 
to leave the territory. 
30 The ‘return’ directive [Directive 2008/115], which does not apply to EU citizens 
and members of their families, but which does apply to illegally staying third-
country nationals, provides that the Member States may impose certain 
obligations on foreign nationals against whom an order to leave the territory has 
been issued, aimed at ‘avoiding the risk of absconding’ (Article 7). Those 
obligations may consist of regular reporting to the authorities, deposit of an 
adequate financial guarantee, submission of documents or the obligation to stay at 
a certain place. Article 3.7 of the same directive defines the ‘risk of absconding’ 
as ‘the existence of reasons in an individual case which are based on objective 
criteria defined by law to believe that a third-country national who is the subject 
of return procedures may abscond’. 
By contrast, Directive 2004/38, which does apply to EU citizens and members of 
their families, contains no provisions on measures that can be taken in relation to 
those foreign nationals aimed at preventing a risk of absconding, during the period 
given to them in which to leave the territory, where a decision to withdraw the 
right of residence has been made against them. 
31 The preamble to the contested provisions states that: 
‘These new rules do not transpose 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 
(“the ‘return’ directive”) but are broadly inspired by it. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-718/19 
 
14  
In that regard, in its order of 10 February 2004, (Mavrona, C-85/03, 
EU:C:2004:83, paragraph 20), the European Court of Justice held that a national 
legislature is not precluded from introducing, for a category of situations or 
persons, rules inspired by the provisions of a directive the scope of application of 
which does not include those situations or persons, where it appears expedient to 
do so and provided that no other provision of Community law prevents it from 
doing so. 
The aim is to provide EU citizens and members of their families with a removal 
regime that is no less favourable than that available for third-country nationals. 
These new articles provide that if the EU citizen or the member of his or her 
family does not comply voluntarily, the Minister or a person delegated by the 
Minister will carry out his or her removal. The same applies where the EU citizen 
or the member of his or her family presents a risk of absconding, has failed to 
comply with the preventive measures imposed or represents a threat to public 
policy or national security, even though the period given to that person in which to 
leave the territory of the Kingdom voluntarily has not yet expired’ (Doc. parl., 
Chambre, 2016-2017, DOC 54-2215/001, p. 38). 
It is further clarified that the Law expressly provides for house arrest because the 
legislature alone can lay down a measure that restricts the freedom to come and go 
(Doc. parl., Chambre, 2016-2017, DOC 54-2215/001, p. 38). The Council of 
Ministers infers from the foregoing that the other ‘preventive measures’ that the 
King is authorised to establish cannot have the purpose or effect of restricting the 
freedom to come and go of the persons concerned. 
32 Whatever the type of preventive measures in question, they necessarily affect the 
rights and freedoms of the EU citizen or the member of his or her family 
concerned because their very purpose is to prevent that person from absconding, 
thereby, where applicable, potentially preventing him or her from travelling to a 
different Member State and, ultimately, to ensure his or her forced departure from 
Belgian territory. 
33 In its order in Mavrona, to which the travaux préparatoires cited in paragraph 31 
refer, the Court of Justice held that, in the absence of any harmonisation in EU 
law for a category of professionals, that is to say, commission agents, a national 
legislature may introduce, for the protection of that category, appropriate rules 
inspired by the provisions of a directive concerning a different category of 
professionals, that is to say, commercial agents, where no other provision of 
Community law prevents it from doing so (order of 10 February 2004, Mavrona, 
C-85/03, EU:C:2004:83, paragraph 20). This does not appear to suggest that 
restrictions on the fundamental rights of nationals of countries not belonging to 
the European Union that are permitted by a directive that relates expressly to the 
situation of those nationals can be applied by analogy to EU citizens where the 
directive that applies to their situation does not provide for those restrictions. 
ORDRE DES BARREAUX FRANCOPHONES ET GERMANOPHONE AND OTHERS 
 
15 
34 The Court of Justice has also held that: 
‘Directives 2004/38 and 2008/115 do not preclude a decision to return an EU 
citizen, such as that at issue in the main proceedings, from being adopted by the 
same authorities and according to the same procedure as a decision to return a 
third-country national staying illegally referred to in Article 6(1) of Directive 
2008/115, provided that the transposition measures of Directive 2004/38 which 
are more favourable to that EU citizen are applied’ (judgment of 14 September 
2017, Petrea, C-184/16, EU:C:2017:684, paragraph 56). 
35 The purpose of the contested provision is not to designate the authority competent 
to make a return decision in respect of an EU national or a member of his or her 
family. Nor is it a procedural provision. The ruling in Petrea cannot therefore be 
transposed by analogy to the contested provision, because the present case 
concerns restrictions on the fundamental rights of EU citizens and foreign 
nationals treated as EU citizens that are not laid down in the directive applicable 
to their situation. 
36 It follows from the foregoing that there is uncertainty as to whether the provisions 
of Directive 2008/115 on preventive measures in the event of the removal of a 
third-country national are applicable by analogy to EU citizens. 
37 Before ruling on the substance in relation to the second paragraph of 
Article 44quater, Article 44quinquies(1)(3) and the second paragraph of 
Article 44sexies of the Law of 15 December 1980, inserted by Articles 28, 29 and 
30 of the contested Law, it is therefore necessary to refer the first question in the 
operative part to the Court of Justice for a preliminary ruling. 
2. Forced removal before passing of the time limit 
38 Under Article 44quinquies, inserted in the Law of 15 December 1980 by 
Article 29 of the contested Law, the Minister or a person delegated by the 
Minister may ‘take all the measures necessary to enforce the order to leave the 
territory’ where no time limit has been given in which to do so, where the person 
concerned has not left the territory within the time limit given or where, before the 
period in question has expired, that person either has not complied with preventive 
measures intended to avoid a risk of absconding or represents a threat to public 
policy or to national security. 
39 Examination of the provision, to the extent that it enables an order to leave the 
territory issued against a foreign national who has failed to comply with 
preventive measures imposed to be enforced before the passing of the time limit, 
should be stayed pending a response from the Court of Justice. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-718/19 
 
16  
3. Detention and alternatives to detention 
40 Under Article 44septies of the Law of 15 December 1980, inserted by Article 31 
of the contested Law, EU citizens and members of their families can be held in 
order to ensure that the removal measure is carried out, for the period strictly 
necessary to carry out the measure. The period for which they can be held is in 
principle limited to two months but may be extended initially by the Minister or a 
person delegated by the Minister for a period of two months. It may then be 
extended by the Minister alone. The person concerned must be freed after five 
months, unless it is necessary to continue to hold him or her in order to safeguard 
public policy or national security. In such a case, the total length of time for which 
the person can be held is limited to eight months. 
41 The applicants criticise that provision for establishing periods for which a person 
can be held that are excessively long and therefore disproportionate and for failing 
to establish clear criteria in order to determine objectively the period necessary to 
carry out the measure and what amounts to diligent treatment by the authority 
responsible for effecting the measure. 
42 For EU citizens and members of their families, the contested provision reproduces 
the regime that Article 74/5(3) of the Law of 15 December 1980 lays down for 
third-country nationals. It accordingly provides that EU citizens and members of 
their families will be treated in exactly the same way as all other foreign nationals, 
while awaiting removal to any country in the world, in particular in relation to the 
maximum period of detention for the purposes of removal. 
43 Although Article 5(1)(f) of the ECHR does not preclude a foreign national from 
being held in a particular place for the purposes of his or her forced removal from 
the territory if that person has not complied with an order to leave the territory, 
detention is justified in the light of that provision only on the condition that the 
removal procedure is carried out with due diligence (ECtHR, 4 April 2017, 
Thimothawes v. Belgium, CE:ECHR:2017:0404JUD003906111, § 60). The 
question also arises as to whether Article 44septies(1), second to fourth 
subparagraphs, of the Law of 15 December 1980, inserted by Article 31 of the 
contested Law of 24 February 2017, is compatible with the freedom of movement 
guaranteed to EU citizens and members of their families by Articles 20 and 21 
TFEU and the provisions of Directive 2004/38 from which it can be inferred that 
the length of time for which they can be held is limited to the time strictly 
necessary to carry out the removal measure. Although Article 44septies of the 
Law of 15 December 1980, inserted by the contested provision, expressly states 
that persons cannot be held for more than the time strictly necessary to carry out 
the measure, it provides that that period can be extended to up to eight months in 
order to arrange and carry out the transfer of an EU citizen or a member of his or 
her family to the country of which that person has the nationality or in which that 
person has a right of residence as the member of the family of a national of that 
country. Furthermore, it does not clarify the procedures that the authority has to 
ORDRE DES BARREAUX FRANCOPHONES ET GERMANOPHONE AND OTHERS 
 
17 
undertake for the purposes of removing the foreign national to a different EU 
country. 
44 Before ruling on the substance in relation to the second to fourth subparagraphs of 
Article 44septies(1) of the Law of 15 December 1980, inserted by Article 31 of 
the contested Law, it is therefore necessary to refer the second question in the 
operative part to the Court of Justice for a preliminary ruling. 
VI. Questions referred 
1. Must EU law, in particular Articles 20 and 21 of the Treaty on the 
Functioning of the European Union and Directive 2004/38/EC of the 
European Parliament and of the Council of 29 April 2004 on the right of 
citizens of the Union and their family members to move and reside freely 
within the territory of the Member States, amending Regulation (EEC) 
No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 
72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 
90/365/EEC and 93/96/EEC be interpreted as precluding national legislation 
according to which the provisions that apply to EU citizens and members of 
their families are similar to those which, in respect of third-country 
nationals, transpose Article 7(3) 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, that is to say, provisions according to which EU citizens 
and members of their families can be obliged to comply with preventive 
measures designed to prevent any risk of absconding during the period given 
to those persons in which to leave the territory following adoption of a 
decision to terminate residence on grounds of public policy or during an 
extension of that period?  
2. Must EU law, in particular Articles 20 and 21 of the Treaty on the 
Functioning of the European Union and Directive 2004/38/EC of the 
European Parliament and of the Council of 29 April 2004 on the right of 
citizens of the Union and their family members to move and reside freely 
within the territory of the Member States, amending Regulation (EEC) 
No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 
72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 
90/365/EEC and 93/96/EEC be interpreted as precluding national legislation 
according to which a provision that applies to EU citizens and members of 
their families who have not complied with a decision terminating residence 
on grounds of public policy is identical to that applied to third-country 
nationals in the same situation in relation to the maximum period of 
detention for the purposes of removal, that is to say, eight months?