Information;Order — ECLI:EU:C:2022:672
Date: 2022-09-08
Language of the case: French
Court formation: Ninth Chamber
Subject matter: Asylum policy;Immigration and asylum policy;Area of freedom, security and justice;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling - inadmissible
Origin: Belgium

Anonymised version 
Translation C-56/22 – 1 
Case C-56/22 
Request for a preliminary ruling 
Date lodged:  
28 January 2022 
Referring court:  
Tribunal de première instance de Liège (Belgium) 
Date of the decision to refer:  
14 January 2022 
Applicant:  
PL 
Defendant:  
État belge 
  
Tribunal de première instance de Liège – Division Liège 
(Court of First Instance, Liège – Liège Division, Belgium) 
Judgment 
[…] 
In the proceedings: 
[PL], […] 
Applicant […] 
v 
ETAT BELGE […] 
Defendant […] 
EN 
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[…] 
I. PROCEDURE 
[…] 
[…] [procedure] 
II. PRESENTATION OF THE FACTS AND THE REQUEST 
II.1. [PL], who is of Congolese nationality, arrived in Belgium at the end of 2010.  
II.2. On 12 October 2010, she applied for asylum. 
II.3. On 4 July 2012, the Commissaire Général aux Réfugiés et aux Apatrides 
(Commissioner General for Refugees and Stateless Persons[; ‘the CGRS’]) 
refused her refugee status and subsidiary protection status. 
II.4. On 25 July 2012, an order to leave the territory was made, following that 
decision. 
II.5. On an unspecified date, [PL] brought an appeal before the Conseil du 
contentieux des étrangers (Council for asylum and immigration proceedings, 
Belgium[; ‘the CCE’]) against the decision refusing international protection of 
4 July 2012. 
II.6. On 13 August 2012, she brought an appeal before the [CCE] seeking the 
suspension and annulment of the order to leave the territory made on 25 July 
2012. 
II.7. On 27 August 2012, she was given a ‘special residence document’ 
(Annex 35) authorising her to remain on the territory until a ruling had been given 
on her appeal brought before the [CCE] against the decision refusing international 
protection of 4 July 2012. 
II.8. On 13 September 2012, she applied for a residence authorisation on the 
basis of Article 9bis of 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; ‘the 
Law of 15 December 1980’ or ‘the Law on foreign nationals’)] […] 
II.9. On 31 December 2012, the [CCE] dismissed the appeal brought against the 
decision refusing international protection of 4 July 2012. [PL], consequently, had 
her Annex 35 withdrawn […] 
II.10. On 18 March 2013, the application for a residence authorisation made on 
13 September 2012 on the basis of Article 9bis was declared inadmissible. 
ÉTAT BELGE 
 
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II.11. On 21 March 2013, the [CCE] […] dismissed the appeal brought against 
the order to leave the territory made on 25 July 2012. 
II.12. On 27 March 2013, a new order to leave the territory was made against 
[PL]. 
II.13. On 29 May 2013, she brought an appeal seeking the suspension and 
annulment of the decision, taken on 18 March 2013, that her application for a 
residence authorisation [on the basis of Article 9bis] was inadmissible […] 
II.14. On 2 September 2019, the [CCE] dismissed the appeal brought against that 
decision of 18 March 2013 […] 
II.15. On 19 September 2019, [PL] brought an administrative appeal on a point 
of law before the administrative litigation section of the Conseil d’État (Council of 
State, Belgium) against the judgment given on the basis of Article 9bis by the 
[CCE] on 2 September 2019. 
II.16. By judgment No 250 863, of 10 June 2021, the Council of State dismissed 
the appeal on a point of law, brought on the basis of Article 9bis, contrary to the 
opinion of the auditors’ office. 
II.17. By summons of 26 July 2021, [PL] brought the present proceedings. 
II.18. In terms of the most recent forms of order sought by them, the position of 
each of the parties is as follows. 
[PL] asks the court to: 
‘Declare the action admissible and well founded. 
Before ruling, refer the following question to the CJEU: 
Does EU law, essentially the provisions of the Charter of Fundamental 
Rights of the European Union and Directive 2008/115/EC, apply to a 
practice of a Member State allowing it to regularise in situ a foreign 
national staying there illegally? If it does, must Articles 5, 6 and 13 of 
Directive 2008/115/EC, read in accordance with [recitals 6 and 24] 
thereof, and Articles 1, 7, 14, 20, 21, 24 and 47 of the Charter of 
Fundamental Rights of the European Union be interpreted as meaning 
that, where a Member State is considering granting an autonomous 
residence permit or other authorisation offering a right to stay for 
compassionate, humanitarian or other reasons to a third-country 
national staying illegally on its territory, it is entitled to: (i) require that 
national, first of all, to prove that it is impossible to make his or her 
application in his or her country of origin; and (ii) not set out in its 
legislation the, a fortiori objective, conditions and criteria for proving 
those compassionate, humanitarian or other reasons, thereby rendering 
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the response to such an application unpredictable, or even arbitrary? If 
it is permissible for those criteria not to be laid down by legislation, in 
the event of a refusal, is the right to an effective remedy not 
undermined by the fact that the only remedy provided is based on strict 
legality, excluding any considerations of appropriateness? 
In order to allow [PL] to effectively make an application for regularisation, 
order the État belge (Belgian State) to communicate to her in writing the 
positive and objective criteria for her to be regularised on the basis of 
Article 9bis of the Law on foreign nationals […] [procedure]  
By way of compensation for the material and non-material damage suffered 
as a result of the abovementioned errors, [PL] [claims that the court should] 
order [the Belgian State] to pay a provisional amount of one euro. Judgment 
should be reserved on the remainder. 
[…]’. [procedure] 
The Belgian State [contends that the court should]: 
‘… 
[…] [objection to jurisdiction and plea of inadmissibility] 
In the alternative, reject the applicant’s claim as unfounded; 
[…]’. [procedure] 
III. ANALYSIS 
[…] 
[…] [grounds not relevant to the request for a preliminary ruling] 
The claim is admissible.  
III.2. Basis of the claim 
Article 267 of the Treaty on the Functioning of the European Union provides: 
‘The Court of Justice of the European Union shall have jurisdiction to give 
preliminary rulings concerning: 
(a) the interpretation of the Treaties; 
(b) the validity and interpretation of acts of the institutions, bodies, offices 
or agencies of the Union[.] 
ÉTAT BELGE 
 
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Where such a question is raised before any court or tribunal of a Member 
State, that court or tribunal may, if it considers that a decision on the 
question is necessary to enable it to give judgment, request the Court to give 
a ruling thereon. […]’. 
The parties disagree as to whether or not EU law applies in the present case and as 
to the consequences of that.  
[PL] claims [as follows]: 
‘Failure to respect EU law. 
The refusal to make public the positive criteria for regularisation (of 
residence) is also incompatible with EU law[,] whatever the Council of State 
may say. 
Article 9bis of the Law [of 15 December 1980] falls under the right which is 
reserved for Member States by Article [6(4)] of [Directive 2008/115/EC of 
the European Parliament and of the Council of 16 December 2008 on 
common standards and procedures in Member States for returning illegally 
staying third-country nationals (OJ 2008 L 348, p. 98) (also “the Return 
Directive”)]: “Member States may at any moment decide to grant an 
autonomous residence permit or other authorisation offering a right to stay 
for compassionate, humanitarian or other reasons to a third-country 
national staying illegally on their territory. In that event[,] no return 
decision shall be issued. Where a return decision has already been issued, it 
shall be withdrawn or suspended for the duration of validity of the residence 
permit or other authorisation offering a right to stay”. 
According to recital [6] of that directive: “Member States should ensure that 
the ending of [the] illegal stay of third-country nationals is carried out 
through a fair and transparent procedure. According to general principles 
of EU law, decisions taken under this Directive should be adopted on a 
case-by-case basis and based on objective criteria, implying that 
consideration should go beyond the mere fact of an illegal stay. When using 
standard forms for decisions related to return, namely return decisions and, 
if issued, entry-ban decisions and decisions on removal, Member States 
should respect that principle and fully comply with all applicable provisions 
of this Directive”. 
According to recital [24] of that directive: “This Directive respects the 
fundamental rights and observes the principles recognised in particular by 
the Charter of Fundamental Rights of the European Union”. 
Article 1 of the [Charter of Fundamental Rights of the European Union; “the 
Charter”] notes that “Human dignity is inviolable. It must be respected and 
protected”. Article 7 of the Charter guarantees respect for private life, 
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Article 15, the right to work, and Articles 20 and 21, respect for the 
principles of equality and non-discrimination. 
The CJEU stated in the [judgment of 5 June 2014, Mahdi (C-146/14 PPU, 
EU:C:2014:1320)]: “As is clear from the objective of Directive 2008/115, 
described in paragraph 38 of this judgment, the purpose of the directive is 
not to regulate the conditions of residence on the territory of a Member 
State of third-country nationals who are staying illegally and in respect of 
whom it is not, or has not been, possible to implement a return decision. 
However, Article 6(4) of Directive 2008/115 enables the Member States to 
grant an autonomous residence permit or other authorisation offering a 
right to stay for compassionate, humanitarian or other reasons to a third-
country national staying illegally on their territory. Similarly, recital 12 in 
the preamble to the directive states that the Member State should provide 
third-country nationals who are staying illegally but who cannot yet be 
removed with written confirmation of their situation. The Member States 
enjoy wide discretion concerning the form and format of the written 
confirmation” [paragraphs 87 and 88]. 
Even though the objective of the Return Directive is to “establish an 
effective removal and repatriation policy, based on common standards and 
common legal safeguards, for persons to be returned in a humane manner 
and with full respect for their fundamental rights and dignity”, Article [6(4)] 
of that directive allows Member States to grant a residence permit for 
humanitarian, compassionate or other reasons, which is the case of 
Article 9bis of the Law on foreign nationals. That is accepted by the CCE 
(judgment 168 510 of 27 May 2016): “In addition, Article 6(4) of Directive 
2008/115/EC of the European Parliament and of the Council of 
16 December 2008 provides that the defendant is to retain the right to 
favour the option of regularisation of residence ‘for compassionate, 
humanitarian or other reasons’, and recital 6 of that directive provides that 
‘according to general principles of EU law, decisions taken under this 
Directive should be adopted on a case-by-case basis and based on objective 
criteria, implying that consideration should go beyond the mere fact of an 
illegal stay’ (see, to that effect, CE [Council of State], No 232 758 of 
29 October 2015)”. That judgment was not criticised (judgment 238 170 of 
11 May 2017). 
As the Return Directive thus authorises a non-return decision (see also 
[recital 12] of that directive), the principles governing it apply to such a 
decision, including Article 12 of that directive, which provides that decisions 
taken must give reasons in fact and in law, and [recital 6] of that directive, 
which provides on a universal basis for account to be taken of objective 
criteria: “According to general principles of EU law, decisions taken under 
this Directive should be adopted on a case-by-case basis and based on 
objective criteria […]”.  
ÉTAT BELGE 
 
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According to the Council of State, “it is not necessary to refer to the Court 
of Justice of the European Union the question which the applicant seeks to 
have referred for a preliminary ruling, since Directive 2008/115/EC in no 
way governs the conditions or rules for applying for a residence 
authorisation. As that finding is so obvious as to leave no scope for any 
reasonable doubt, the Council of State is not obliged to make a reference to 
the Court of Justice of the European Union”.  
That obviousness is at variance with the finding made earlier in the 
judgment that “Ms Valérie Michiels, first auditor, presented her opinion to 
the contrary”, according to which: “Article 6(4) of the abovementioned 
Directive 2008/115 provides for an exception to the obligation of Member 
States to issue a return decision in respect of third-country nationals staying 
illegally, by providing that no return decision may be issued where a 
Member State decides, on a sovereign basis, to grant an autonomous 
residence permit to such a national for humanitarian or compassionate 
reasons. However, Article 9bis of the Law of 15 December 1980 is a 
provision which does not merely set out the conditions in which a residence 
authorisation of more than three months may be applied for on Belgian 
territory, by way of exception to the rule established in Article 9 of the law, 
according to which such an application must be submitted to the competent 
Belgian diplomatic or consular post for the place where the applicant is 
residing or staying abroad, but also allows, where those conditions of 
admissibility are fulfilled, for a right of residence of more than three months 
to be enjoyed, inter alia for compassionate, humanitarian or other reasons, 
by a third-country national staying illegally on the territory, as envisaged by 
Article 6(4) of the abovementioned Directive 2008/115. Consequently, as the 
Council for asylum and immigration proceedings pointed out, in its 
judgment No 168 510 of 27 May [2016], Article 9bis of the Law of 
15 December 1980 must be considered to constitute a partial transposition 
of Article 6(4) of Directive 2008/115 and to fall under the option for 
Member States to decide to grant an autonomous residence permit for 
humanitarian reasons. As a result, it can be accepted that regardless of the 
fact that the objective of Directive 2008/115 is not to seek to govern the 
conditions of residence on the territory of a Member State of third-country 
nationals staying illegally, which rules form part of national law alone, 
Article 9bis of the Law of 15 December 1980 implements (Article 6(4) of) 
that directive and the principles which govern that directive also apply to 
decisions based on that provision. As a result, contrary to what the opposing 
party maintains, it appears that recital 6 of that directive, according to 
which decisions taken under this Directive should be adopted on a case-by-
case basis and based on objective criteria[,] is applicable to a decision of 
inadmissibility taken on the basis of Article 9bis of the Law of 15 December 
1980, as is recital 24, according to which this Directive respects the 
fundamental rights and observes the principles recognised in particular by 
the Charter of Fundamental Rights of the European Union”.  
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And [the applicant proposes] the question referred to in the operative part [of 
the judgment]. 
If it were to be the case that Belgian law is not compliant with EU law, the 
absence of legal criteria for regularisation, the State’s administrative 
management and the judgments given by the administrative courts, which 
are based on Belgian law, would be manifestly erroneous. 
As the degree of obviousness is not that found by the Council of State, the 
matter should be referred to the CJEU before a ruling is given. 
Alternatively, [the third paragraph of Article 267] TFEU states that where a 
question on which a preliminary ruling may be given “is raised in a case 
pending before a court or tribunal of a Member State against whose 
decisions there is no judicial remedy under national law, that court or 
tribunal shall bring the matter before the Court”. Ordinarily optional, a 
reference for a preliminary ruling is obligatory for courts adjudicating at last 
instance, including [the] Council of State hearing an appeal on a point of 
law, as in the present case. The Council of State was therefore obliged to 
refer a question for a preliminary ruling. As it did not do so, it made an error 
[…] 
With regard to the issue of incompatibility with EU law, the defendant refers 
to the judgment of the Council of State of 10 June 2021, according to which: 
“Article 9bis of the Law of 15 December 1980 on the admission, residence, 
establishment and removal of foreign nationals is therefore in no way part of 
the implementation of Article 6(4) of Directive 2008/115/EC”. 
Whilst the defendant correctly maintains that that judgment has the force of 
res judicata, the applicant maintains, for her part, that the reasoning adopted 
in that judgment is erroneous and that it gives rise to liability on the part of 
the State on that basis too.  
It is apparent from the table relating to the transposition of Directive 
2008/115/EC […], showing the correspondence between Directive 2008/115 
and the national transposition measures, that Article [6(4)] of the Return 
Directive is transposed in Articles 9bis and 9ter of the Law on foreign 
nationals. 
If the Belgian legislature decided to transpose Article [6(4) of Directive 
2008/115] in Article 9bis of the Law on foreign nationals, firstly, neither the 
defendant nor its courts may decide/hold to the contrary; secondly, as 
Article 9bis is supposed to transpose Article [6(4)] of the Return Directive, 
the principles which that directive applies must also [be applied] in Belgian 
law, so that the question raised is perfectly relevant for assessing fault on the 
part of the State: 
– which has failed to lay down any objective criteria in its legislation[;] 
ÉTAT BELGE 
 
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– which applies undisclosed criteria, which is at odds with any form of 
objectivity[;] 
– whose courts claim that that legislation and those administrative 
practices are compliant with EU law[;] 
– whose highest court refuses to make a reference to the CJEU, in breach 
of the third paragraph of Article 267 TFEU (which is not disputed by 
the defendant in terms of the form of order which it seeks). 
Decisions taken under the Return Directive must be based on objective 
criteria [recital 6], which alone are capable of avoiding arbitrariness 
[judgment of 15 March 2017, Al Chodor, C-528/15, EU:C:2017:213, 
paragraph 58] […]’. 
The Belgian State contends [as follows]: 
‘24. With regard to the alleged incompatibility with EU law, the defendant 
refers to the abovementioned judgment of the Council of State of 10 June 
2021 […] 
The Council of State, in its judgment of 10 June 2021, has already rejected 
that claim, emphasising that: 
“[…] it is not necessary to refer to the Court of Justice of the European 
Union the question which the applicant seeks to have referred for a 
preliminary ruling, since Directive 2008/115/EC in no way governs the 
conditions or rules for applying for a residence authorisation. As that finding 
is so obvious as to leave no scope for any reasonable doubt, the Council of 
State is not obliged to make a reference to the Court of Justice of the 
European Union”. 
Therefore, it is not necessary to make a reference to the Court of Justice of 
the European Union and reference will be made to the judgment of the 
Council of State of 10 June 2021 for the remainder […]’. 
It is for the CJEU to determine whether or not EU law applies and[,] if so[,] 
whether or not EU law has been breached. 
[…] 
ON THOSE GROUNDS, 
The court hereby […] 
[…] 
[…] [procedure] 
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Refers the following question to the CJEU: 
‘Does EU law, essentially the provisions of the Charter of 
Fundamental Rights of the European Union and Directive 
2008/115/EC, apply to a practice of a Member State allowing it to 
regularise in situ a foreign national staying there illegally? If it does, 
must Articles 5, 6 and 13 of Directive 2008/115/EC, read in 
accordance with [recitals 6 and 24] thereof, and Articles 1, 7, 14, 20, 
21, 24 and 47 of the Charter of Fundamental Rights of the European 
Union be interpreted as meaning that, where a Member State is 
considering granting an autonomous residence permit or other 
authorisation offering a right to stay for compassionate, humanitarian 
or other reasons to a third-country national staying illegally on its 
territory, it is entitled to: (i) require that national, first of all, to prove 
that it is impossible to make his or her application in his or her country 
of origin; and (ii) not set out in its legislation the, a fortiori objective, 
conditions and criteria for proving those compassionate, humanitarian 
or other reasons (whether as far as admissibility is concerned, by 
requiring that exceptional circumstances be demonstrated but not 
defining them, or as far as substance is concerned, by failing to lay 
down any objective criteria for defining the, inter alia humanitarian, 
reasons justifying a residence authorisation), thereby rendering the 
response to such an application unpredictable, or even arbitrary? If it is 
permissible for those criteria not to be laid down by legislation, in the 
event of a refusal, is the right to an effective remedy not undermined 
by the fact that the only remedy provided is based on strict legality, 
excluding any considerations of appropriateness?’ 
[…]