Opinion of the Advocate General — ECLI:EU:C:2017:324
Date: 2017-04-27
Language of the case: Greek
Subject matter: Asylum policy;Citizenship of the Union;Right of establishment;Justice and home affairs;Free movement of workers;Area of freedom, security and justice;Border checks
Procedure: Reference for a preliminary ruling
Origin: Greece

Summary — Judgment of the Court (First Chamber), 14 September 2017 1. Citizenship of the Union — Right to move and reside freely in the territory of the Member States — Directive 2004/38 — Limitation on the right of entry and the right of residence on grounds of public policy or public security — Registration certificate issued to an EU citizen despite a prohibition on entering the territory of the Member State — Withdrawal of that certificate and adoption of a further expulsion decision based solely on establishing the existence of a valid exclusion order — Admissibility, also under the principle of the protection of legitimate expectations (European Parliament and Council Directive 2004/38, Recital 11 and Arts 8(2) and 32(1) and (2)) 2. Citizenship of the Union — Right to move and reside freely in the territory of the Member States — Directive 2004/38 — Limitation on the right of entry and the right of residence on grounds of public policy or public security — Decision to return an EU citizen — Adoption of that decision by the same authorities and according to the same procedure as a decision to return an illegally staying third-country national for the purposes of Directive 2008/115 — Lawfulness — Condition (European Parliament and Council Directives 2004/38 and 2008/115, Art. 6(1)) 3. Citizenship of the Union — Right to move and reside freely in the territory of the Member States — Directive 2004/38 — Limitation on the right of entry and the right of residence on grounds of public policy or public security — National of a Member State subject to a decision to return who is not able to rely, in support of an action brought against that decision, on the unlawfulness of the exclusion order previously taken against him — Infringement of the principle of effectiveness — Absence — Condition (European Parliament and Council Directive 2004/38) 4. Citizenship of the Union — Right to move and reside freely in the territory of the Member States — Directive 2004/38 — Limitation on the right of entry and the right of residence on grounds of public policy or public security — Decision restricting freedom of movement and residence of an EU citizen — Notification — Obligation to notify the decision in a language understood by the person concerned in the absence of a request on his part — Absence (European Parliament and Council Directives 2004/38, Arts 27(1) and 30, and 2008/115, Art. 12(2)) 1. 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 and the protection of legitimate expectations do not preclude a Member State from, first, withdrawing a registration certificate wrongly issued to an EU citizen who was still subject to an exclusion order, and, secondly, adopting a removal order against him based on the sole finding that the exclusion order was still valid. As regards, first of all, the withdrawal of the registration certificate, it has been held by the Court that the right of nationals of a Member State to enter the territory of another Member State and to reside there for the purposes intended by the EC Treaty is a right conferred directly by the Treaty, or, as the case may be, by the provisions adopted for its implementation. Therefore, the grant of a residence permit to a national of a Member State is to be regarded, not as a measure giving rise to rights, but as a measure by a Member State serving to prove the individual position of a national of another Member State with regard to provisions of European Union law (judgment of 21 July 2011, Dias, C‑325/09, EU:C:2011:498, paragraph 48 and the case-law cited). Consequently, just as such a declaratory character means that a citizen’s residence may not be regarded as illegal, within the meaning of European Union law, solely on the ground that he does not hold a residence permit, it precludes a Union citizen’s residence from being regarded as legal, within the meaning of European Union law, solely on the ground that such a permit was validly issued to him (judgment of 21 July 2011, Dias, C‑325/09, EU:C:2011:498, paragraph 54). As the Advocate General pointed out in point 42 of his Opinion, the same is true a fortiori in the context of the TFEU, as is moreover stated in recital 11 of Directive 2004/38. Such a declaratory character attaches, therefore, also to the registration certificate provided for in Article 8(2) of Directive 2004/38, with the result that the issue of that document cannot, in itself, give rise to a legitimate expectation on the part of the person concerned in his right to stay on the territory of the Member State concerned. As regards the modalities for adopting a decision imposing return in circumstances such as those in the main proceedings, it should be recalled that Article 27(1) of Directive 2004/38 provides, subject to the provisions of Chapter VI thereof, for the possibility for Member States to restrict the freedom of movement and residence of a Union citizen or a member of his family, irrespective of nationality, on grounds of public policy, public security or public health. Article 28(1) of that directive requires the competent authorities to take account of considerations such as how long the individual concerned has resided on its territory, his/her age, state of health, family and economic situation, social and cultural integration into the host Member State and the extent of his/her links with the country of origin, before taking an expulsion decision on grounds of public policy or public security. Those provisions, which cover all expulsion decisions, apply therefore in particular to exclusion decisions which are expressly referred to by Article 32 of Directive 2004/38. Although Directive 2004/38 does not contain specific provisions relating to situations in which a person who is subject to such an exclusion re-enters the Member State concerned in infringement thereof, it results from the entirety of the provisions of that directive and more particularly from those concerning the possible lifting of such an exclusion that the competent authorities possess the power to ensure compliance therewith. It should be noted, in that regard, that Directive 2004/38 lays down the conditions under which the competent authorities may lift that prohibition due to changed circumstances. The first subparagraph of Article 32(1) of Directive 2004/38 states that persons subject to a decision ordering their exclusion may submit an application for lifting of the exclusion order after a reasonable period, depending on the circumstances, and in any event after three years from enforcement of that order, by putting forward arguments to establish that there has been a material change in the circumstances which justified the adoption of the decision. Article 32(2) of that directive states however that those persons have ‘no right of entry to the territory’ of the Member State concerned while their application is being considered. It is consequently expressly apparent from the wording of those provisions that Directive 2004/38 in no way prevents a Member State from adopting a return decision in relation to a person who applied for the lifting of the exclusion order imposed on him, in accordance with Article 32(1) of that directive, as long as the examination of that application has been concluded with a successful outcome for the applicant. The same is necessarily the case where, as in the main proceedings, the person concerned re-entered the Member State concerned without having applied for the lifting of the exclusion order imposed on him. As regards the question whether the competent authorities must again verify whether the conditions set out in Articles 27 and 28 of Directive 2004/38 have been satisfied, it follows from the very nature of an exclusion order that it remains in force as long as it has not been lifted and that the mere finding that it has been infringed allows those authorities to adopt a new removal decision against the person concerned. (see paras 32-35, 39-49, operative part 1) 2. Directive 2004/38 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 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. (see para. 56, operative part 2) 3. The principle of effectiveness does not preclude a legal practice according to which a national of a Member State who is subject to a return order in circumstances such as those at issue in the main proceedings may not rely, in support of an action against that order, on the unlawfulness of the exclusion order previously adopted against him, in so far as the person concerned had effectively the possibility to contest that latter order in good time in the light of the provisions of Directive 2004/38. In that regard, it is apparent from the Court’s settled case-law that, in the absence of EU rules, the Member States are responsible for designating the courts having jurisdiction and for determining the rules of procedure governing actions for safeguarding rights which individuals derive from European Union law. However, those rules must not be such as to render virtually impossible or excessively difficult the exercise of rights conferred by EU law (judgments of 29 April 2004, Orfanopoulos and Oliveri, C‑482/01 and C‑493/01, EU:C:2004:262, paragraph 80 and of 13 March 2014, Global Trans Lodzhistik, C‑29/13 and C‑30/13, EU:C:2014:140, paragraph 33). EU law in no way precludes national legislation from providing that it is not possible to rely, against an individual measure, such as a return decision, on the unlawfulness of an exclusion order which has become final, either because the time limit for bringing an action against that order expired, or because the action brought against it was dismissed. As the Court has held on several occasions, it is compatible with EU law to lay down reasonable time limits for bringing proceedings in the interests of legal certainty, which protects both the individual and the administrative authority concerned (judgment of 17 November 2016, Stadt Wiener Neustad, C‑348/15, EU:C:2016:882, paragraph 41 and the case-law cited). However, the interested person must have had the possibility to effectively contest in good time the original exclusion order and to rely on the provisions of Directive 2004/38. (see paras 58-61, 65, operative part 3) 4. Article 30 of Directive 2004/38 requires the Member States to take every appropriate measure with a view to ensuring that the person concerned understands the content and implications of a decision adopted under Article 27(1) of that directive but that it does not require that decision to be notified to him in a language he understands or which it is reasonable to assume he understands, although he did not bring an application to that effect. It should, first of all, be noted that such a requirement does not derive from the wording of Article 30(1) of that directive, which provides, more generally, that the persons concerned are to be notified in writing of any decision taken under Article 27(1) ‘in such a way that they are able to comprehend its content and the implications’. Next, it follows from the preparatory works to Directive 2004/38, in particular from the proposal for a directive of the European Parliament and of the Council on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [COM(2001) 257 final], that Article 30(1) of Directive 2004/38 does not mean that the removal order is to be translated into the language of the person concerned, but requires by contrast that the Member States take the necessary measures to ensure that the latter understands the content and implications of that decision, in accordance with the Court’s findings in the judgment of 18 May 1982, Adoui and Cornuaille (115/81 and 116/81, EU:C:1982:183, paragraph 13). Finally, it should be noted, concerning return decisions adopted against third-country nationals, that Article 12(2) of Directive 2008/115 provides that the Member States are to provide, upon request, a written or oral translation of the main elements of decisions related to return, including information on the available legal remedies in a language the third-country national understands or may reasonably be presumed to understand. (see paras 69-72, operative part 4)