62011CP0061_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
1. The Corte d’appello di Trento (Italy) has referred to the Court two questions for a preliminary ruling concerning Directive 2008/115/EC of the European Parliament and of the Council on common standards and procedures in Member States for returning illegally staying third-country nationals, (2) worded as follows:
‘In the light of the principle of sincere cooperation, the purpose of which is to ensure the attainment of the objectives of the directive, and the principle that the penalty must be proportionate, appropriate and reasonable, do Articles 15 and 16 of Directive 2008/115/EC preclude:
1. the possibility that criminal sanctions may be imposed in respect of a breach of an intermediate stage in the administrative return procedure, before that procedure is completed, by having recourse to the most severe administrative measure of constraint which remains available?
2. the possibility of a sentence of up to four years’ imprisonment being imposed in respect of a simple failure to cooperate in the deportation procedure on the part of the person concerned, in particular where the first removal order issued by the administrative authorities has not been complied with?’
2. The referring court considers that the Court’s answer to the questions referred to it is necessary in order for it to be able to adjudicate on the appeal lodged by Mr El Dridi, a third-country national illegally staying in Italy, against the judgment of the Tribunale di Trento (Italy) whereby that court sentenced him to one year’s imprisonment for the offence, established on 29 September 2010, of failure to comply with the order made by the Questore (3) to leave the territory of the State within five days.
3. More precisely, the order in issue is a removal order made by the Questore di Udine on 21 May 2010 pursuant to a deportation decree issued by the Prefetto di Torino on 8 May 2004 and served on Mr El Dridi upon his release at the end of the long sentence which he had served after being convicted of drug offences. The reasons stated for the Questore’s removal order were that it was impossible to deport Mr El Dridi because no vehicle or other means of transport was available, there were no identification documents and it was impossible to accommodate him in a detention centre owing to the lack of places.
4. It follows from the order for reference that Mr El Dridi is being detained because he is accused of the offence referred to above. It is for that reason that the Court decided, pursuant to the fourth paragraph of Article 267 TFEU, and at the request of the referring court, to deal with the present reference under the urgent preliminary ruling procedure.
5. Written observations were submitted to the Court by Mr El Dridi, the Italian Government and the European Commission. All were represented at the hearing held on 30 March 2011.
6. Mr El Dridi proposed that the Court’s answer to the questions referred to it should be that Articles 15 and 16 of Directive 2008/15, which have direct effect in the legal orders of the Member States, preclude the possibility for the Member State to impose a term of imprisonment for failure to comply with a removal order made against a third-country national in the context of administrative return proceedings.
7. The Commission proposed a virtually identical answer, but adds that not only Articles 15 and 16 of Directive 2008/115 but also Articles 7(1) and 8(1) of that directive preclude the national rules in question.
8. Taking the opposite view, the Italian Republic proposed that the Court’s answer to the questions referred to it should be that Directive 2008/115 and the Community principle of sincere cooperation in order to ensure effectiveness do not preclude the national rules in question, if the removal order, made on the basis of a specific assessment by the court, is consistent with the provisions of that directive.
Legal context
Directive 2008/115
9. Directive 2008/115 has as its objective, as is apparent both from recitals 2 and 20 in the preamble and from Article 1, to establish common rules concerning return, removal, use of coercive measures, detention and entry bans with respect to third-country nationals illegally staying on the territory of a Member State which should serve as the basis of an effective removal policy.
10. Under Article 2(2)(b) of Directive 2008/115 Member States may decide not to apply that directive to third-country nationals who are subject to return as a criminal law sanction or as a consequence of a criminal law sanction, according to national law, or who are the subject of extradition procedures.
11. In accordance with recital 10 in the preamble to Directive 2008/115, which states that voluntary return should be preferred over forced return of third-country nationals illegally staying on the territory of a Member State, Article 7 of that directive, entitled ‘Voluntary departure’, provides as follows:
‘1.	A return decision shall provide for an appropriate period for voluntary departure of between seven and thirty days, without prejudice to the exceptions referred to in paragraphs 2 and 4. …
…
4.	If there is a risk of absconding, or if an application for a legal stay has been dismissed as manifestly unfounded or fraudulent, or if the person concerned poses a risk to public policy, public security or national security, Member States may refrain from granting a period for voluntary departure, or may grant a period shorter than seven days.’
12. Article 8 of Directive 2008/115, entitled ‘Removal’, is worded as follows:
‘1.	Member States shall take all necessary measures to enforce the return decision if no period for voluntary departure has been granted in accordance with Article 7(4) or if the obligation to return has not been complied with within the period for voluntary departure granted in accordance with Article 7.
…
4.	Where Member States use — as a last resort — coercive measures to carry out the removal of a third-country national who resists removal, such measures shall be proportionate and shall not exceed reasonable force. They shall be implemented as provided for in national legislation in accordance with fundamental rights and with due respect for the dignity and physical integrity of the third-country national concerned.
…’
13. Article 15 of Directive 2008/115, which forms part of the chapter on detention for the purpose of removal, and is entitled ‘Detention’, reads as follows:
‘1.	Unless other sufficient but less coercive measures can be applied effectively in a specific case, Member States may only keep in detention a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when:
(a) there is a risk of absconding, or
(b) the third-country national concerned avoids or hampers the preparation of return or the removal process.
Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence.
…
4.	When it appears that a reasonable prospect of removal no longer exists for legal or other considerations or the conditions laid down in paragraph 1 no longer exist, detention ceases to be justified and the person concerned shall be released immediately.
5.	Detention shall be maintained for as long a period as the conditions laid down in paragraph 1 are fulfilled and it is necessary to ensure successful removal. Each Member State shall set a limited period of detention, which may not exceed six months.
6.	Member States may not extend the period referred to in paragraph 5 except for a limited period not exceeding a further twelve months in accordance with national law in cases where regardless of all their reasonable efforts the removal operation is likely to last longer owing to:
(a) a lack of cooperation by the third-country national concerned, or
(b) delays in obtaining the necessary documentation from third countries.’
14. Article 16(1) of Directive 2008/115 provides that detention is to take place as a rule in specialised detention facilities. Where a Member State cannot provide accommodation in a specialised detention facility and is obliged to resort to prison accommodation, the third-country nationals in detention are to be kept separated from ordinary prisoners.
15. Under Article 20 of Directive 2008/115, Member States were required to bring into force the laws, regulations and administrative provisions necessary to comply with the directive, with the exception of Article 13(4), by 24 December 2010.
National rules
16. On 24 December 2010 the Italian Republic had not adopted the laws referred to in Directive 2008/115.
17. Immigration matters are governed by Legislative Decree No 286 of 25 July 1998 consolidating the provisions regulating immigration and the rules relating to the status of foreign national (‘Legislative Decree No 286/1998’).
18. Article 13 of Legislative Decree No 286/1998, entitled ‘Administrative expulsion’, provides as follows:
‘1.	For reasons of public order and State security, the Minister for the Interior may decide on the expulsion of a foreign national even if he is not resident on the territory of the State …
2.	The expulsion shall be ordered by the prefect where the foreign national:
(a) entered the territory of the State without going through border control and has not been returned in accordance with Article 10;
(b) has remained on the territory of the State without the communication referred to in Article 27(1a) or without applying for a residence permit within the period imposed, except where that delay is due to force majeure, or despite the revocation or cancellation of the residence permit, or without applying for renewal of a residence permit which had expired over 60 days previously. …
…
4.	The expulsion shall always be carried out by the Questore with deportation by the law enforcement authorities, except as provided for in paragraph 5.
5.	Where the foreign national has remained on the territory of the State in spite of the fact that his residence permit expired more than 60 days ago and he has not applied for its renewal, the expulsion decision shall order him to leave the territory of the State within 15 days. If the prefect considers that there is a real risk that the foreign national will avoid enforcement of the decision, the Questore shall order his immediate removal. …’
19. Article 14 of Legislative Decree No 286/1998 concerns the enforcement of the decision to expel a foreign national illegally staying in Italy. It reads as follows:
‘1. Where it is not possible to effect immediately the expulsion by deportation or return because it is necessary to provide assistance to the foreign national, conduct further checks on his identity or nationality, acquire travel documents, or because of the unavailability of the carrier or other suitable means of transport, the Questore shall order that the foreign national is to be detained, for the length of time which is strictly necessary, in the nearest detention centre …
…
5a. Where it is not possible to place the foreign national in an administrative detention centre, or where the stay in such a centre has not allowed for the expulsion or return by deportation to be carried out, the Questore shall order the foreign national to leave the territory of the State within five days. The order shall be in writing and state the consequences of the illegal stay on the territory of the State in terms of penalties, including in the event of a repeat offence. ...
5b. A foreign national who remains illegally and without valid grounds on the territory of the State, contrary to the order issued by the Questore in accordance with paragraph 5a, shall be liable to a term of imprisonment of one to four years if the expulsion or the return has been ordered following an illegal entry into the national territory within the meaning of Article 13(2)(a) and (c), or if application has not been made for a residence permit or the person concerned has not declared his presence on the territory of the State within the period imposed where there is no force majeure, or if his residence permit has been revoked or cancelled. A term of imprisonment of six months to one year shall apply if the expulsion was ordered because the residence permit expired more than 60 days previously and application for renewal has not been made, or if the application for a residence permit was rejected, or where the foreign national has remained on the territory of the State contrary to Article 1(3) of Law No 68 of 28 May 2007. In any event, save where the foreign national is placed in detention, a new expulsion order with deportation by the law enforcement authorities shall be issued for the non-execution of the removal order issued by the Questore pursuant to paragraph 5a. Where deportation is not possible, the provisions of paragraphs 1 and 5a of the present Article shall apply and also, where necessary, the provisions laid down in Article 13(3).
5c. A foreign national who is the recipient of the expulsion order referred to in paragraph 5b and a new removal order as referred to in paragraph 5a and who remains illegally on the territory of the State shall be liable to a term of imprisonment of between one and five years. In any event, the provisions of the third and last sentences of paragraph 5b shall apply.
5d. Where the offences referred to in the first sentence of paragraph 5b and paragraph 5c are committed, the rito direttissimo [expedited procedure] shall be followed and the arrest of the perpetrator shall be mandatory.’
Assessment
20. As I see it, the two questions, which in my view should be answered together, are to be understood as inviting the Court to consider whether Articles 15 and 16 of Directive 2008/115, which regulate the detention of illegally staying third-country nationals for the purpose of removal, preclude a provision of national law under which failure by an illegally staying foreign national to comply with the decision of the national authority ordering him to leave the territory of the State within a specified period constitutes an offence punishable by a term of imprisonment of up to four years.
21. In order that my answer to the questions referred to the Court should be of use and effective independently of whether a person such as Mr El Dridi, namely a person prosecuted for the offence of failure to comply with the decision of the national authority ordering him to leave the territory of the State within a specified period, has or has not been arrested or detained during the criminal proceedings and also independently of whether such a person has or has not ultimately been sentenced to a term of imprisonment, I consider it appropriate to analyse not only Articles 15 and 16 of Directive 2008/115 but also Article 8(1) of that directive and the return procedure provided for in that directive as such.
22. However, it is necessary, first of all, to ascertain whether, regard being had to Article 2(2)(b) of Directive 2008/115, that directive applies in a situation such as Mr El Dridi’s, namely the situation of a foreign national illegally staying on the territory of a Member State who is subject to criminal proceedings on the ground that he did not comply with the order of the public authority to leave the territory of the State within a given period.
23. Under Article 2(2)(b) of Directive 2008/115, Member States may decide to exclude from the scope of the directive third-country nationals who are subject to return as a criminal law sanction or as a consequence of a criminal law sanction, in accordance with national law, or who are the subject of extradition procedures.
24. It is clear from the wording of that provision that exclusion from the scope ratione personae
of Directive 2008/115 can apply only in so far as the return obligation of a foreign national is imposed as a criminal law sanction or is the consequence of such a sanction.
25. Although, according to consistent case-law, the Court is not competent to interpret domestic law, (4) it appears in the present case that it follows from Articles 13 and 14 of Legislative Decree No 286/1998 that the obligation to leave the territory of a Member State or, to use the terminology of Directive 2008/115, the return obligation is not a criminal sanction or a consequence of such a sanction. Both the Prefetto’s expulsion order and the Questore’s removal order are administrative decisions adopted on account of the illegal stay of the person concerned which are not linked to his criminal conviction.
26. In actual fact, the criminal proceedings currently being pursued against Mr El Dridi, which may lead to a term of imprisonment of up to four years, are not the cause of the return obligation but, on the contrary, the consequence of his failure to comply with that obligation.
27. In my opinion, it follows from the foregoing that the exclusion from the scope of Directive 2008/115 provided for in Article 2(2)(b) of that directive is not applicable in the present case and, consequently, that Mr El Dridi’s situation falls within the scope of that directive.
28. To my mind, moreover, a Member State which has not adopted the provisions transposing a directive (which is precisely the case of the Italian Republic with respect to Directive 2008/115) cannot rely on the application of a right deriving from that directive, in the present case the Member State’s right to restrict the scope ratione personae
of the directive. If we were to accept the contrary, the Member State would thus be able to benefit from rights deriving from the directive without fulfilling its obligations in that regard, notably the obligation to adopt the provisions transposing the directive.
29. Following that observation concerning the scope ratione personae
of Directive 2008/115, which endeavours to strike a balance between, on the one hand, the Member State’s right to control the entry, residence and removal of foreign nationals (5) and, on the other, respect for foreign nationals’ fundamental rights and their dignity, I can proceed to analyse the return procedure provided for in that directive.’
30. Directive 2008/115 favours the voluntary departure of a foreign national illegally staying on the territory of a Member State. It is for that reason that the return decision, that is to say, within the meaning of Article 3(4) of Directive 2008/115, a decision declaring the stay of a third-country national to be illegal and imposing or stating an obligation to return, must generally specify an appropriate period for the voluntary departure.
31. Where that period expires without the return obligation having been complied with, that is to say, after an illegally staying foreign national has not complied with the decision of the national authority ordering him to leave the territory of the State within a specified period, Article 8(1) of Directive 2008/115 stipulates that Member States are to take all necessary measures, including, as a last resort, coercive measures, to enforce the return decision.
32. Directive 2008/115 does not contain an exhaustive list of the measures that can be taken to enforce the return decision but, given the individuality (singularity) of each of the return procedures, that would not even be possible.
33. However, in accordance with its intention to ensure respect for fundamental rights of foreign nationals and their dignity, Directive 2008/115 mentions and regulates in Articles 15 to 18, in relative detail, one of the measures provided for in Article 8(1) of that directive, namely detention for the purpose of removal, since such detention constitutes a significant breach of the right to liberty guaranteed by Article 6 of the Charter of Fundamental Rights of the European Union.
34. For the purposes of Article 15(1) of Directive 2008/115, detention is a coercive measure that can be used only in order to prepare the return and/or carry out the removal process, unless other sufficient but less coercive measures can be applied effectively.
35. It should also be borne in mind that the wording of Articles 15 and 16 of Directive 2008/115 shows that the drafters of the directive endeavoured to distinguish between detention for the purposes of removal and deprivation of individual freedom for the purposes of criminal proceedings, such as arrest, provisional detention or imprisonment.
36. I consider that it is clear from Article 8(1) of Directive 2008/115, read in conjunction with Articles 15 and 16 of that directive, which are unconditional and sufficiently precise, first, that the Member State is under an obligation to take action to ensure that the return decision is implemented and, second, that in order to ensure the practical effect of the first obligation, the State is under an obligation to refrain from taking measures capable of compromising the implementation of that decision. The obligations thus borne by the Member States have as their counterpart the right of third-country nationals illegally staying on the territory of the Member States to such conduct on the part of the State.
37. As regards the return system provided for in the Italian legislation, it should be noted that the Italian Republic itself has acknowledged that it had not adopted the laws referred to in Directive 2008/15 by 24 December 2010. Immigration matters are governed by Legislative Decree No 286/1998, which prescribes the return procedure or, according to the terminology of that decree, the administrative expulsion procedure, which is different from that prescribed by Directive 2008/115 – first of all an expulsion decree is issued by the Prefetto, and implemented by the Questore, the foreign national in question being removed by the police; then, if such implementation is not immediately possible, a decision is taken to detain the foreign national concerned; and, finally, if the foreign national cannot be placed in detention, the Questore orders him to leave the territory within five days. Failure to comply with that order is regarded as an offence punishable by a term of imprisonment of between one and four years.
38. However, the two pieces of legislation in question have a common point, in that both Directive 2008/115 and Legislative Decree No 286/1998 provide for the possibility that the third-country national illegally staying on the territory of a Member State does not comply with the order of the public authority to leave the national territory within the prescribed period. None the less, the consequences of such non-compliance are different. While in the system provided for by Directive 2008/115 such conduct may entail, within the meaning of Article 15(1), the detention of the illegally staying third-country national as a measure necessary in order to implement the return decision, on condition that other sufficient but less coercive measures cannot be applied effectively, under Legislative Decree No 286/1998 such conduct is regarded as an offence punishable by a term of imprisonment of between one and four years.
39. The question therefore arises whether the offence consisting in failure to comply with an order of the public authority to leave the national territory within a specified period, punishable by a term of imprisonment, might be regarded as a national measure necessary to implement the return decision within the meaning of Article 8(1) of Directive 2008/115 or, on the contrary, as a measure capable of compromising the implementation of that decision.
40. As regards the term of imprisonment as a national measure necessary to implement the return decision, the explanation provided by the Italian Republic in its written observations is useful. According to the Italian Republic, the term of imprisonment represents a penalty imposed as a punishment in the event of failure to comply with an order of the public authority constituting a serious breach of public order and, consequently, that penalty is not a coercive measure intended to implement the return decision, but is a repressive reaction of the legal order, subject to verification of the absence of a valid ground, to non-compliance with an order of the authority.
41. In that regard, I must state that I fully agree with that characterisation of the term of imprisonment in question, from which it follows that that penalty cannot be regarded as either a national measure necessary to enforce the return decision within the meaning of Article 8(1) of Directive 2008/115 or, consequently, as detention within the meaning of Article 15 of that directive.
42. On the contrary, the term of imprisonment provided for in the event of failure to comply with an order of the public authority to leave the national territory within a specified period objectively prevents the enforcement of that return decision, albeit only temporarily. That is certainly not characteristic of the effective return policy which Directive 2008/115 seeks to achieve. Indeed, the legislation providing for the penalty in question deprives Article 8(1) of Directive 2008/115, read in conjunction with Article 15 of that directive, of its practical effect.
43. That assertion applies not only with respect to the term of imprisonment prescribed in the event of failure to comply with the order of the public authority to leave the national territory within a specified period, but also with respect to the actual criminalisation of failure to comply with such an order.
44. An offence such as that at issue in the present case, namely failure to comply with the decision of the public authority, is designed to protect and also to maintain the authority of the public powers by using criminal-law measures. None the less, it is apparent that the drafters of Directive 2008/115 were more concerned with an effective return policy than with protecting the authority of the public powers by providing, within the meaning of Article 15 of that directive, in such a situation, for detention for the purpose of removal. The Italian legislation, by contrast, gives priority to the authority of the public powers over an effective return policy, by providing in the same situation for a term of imprisonment and therefore deprives Article 15 of Directive 2008/115 of its practical effect.
45. It must therefore be concluded that Directive 2008/115, and in particular Article 8(1), read in conjunction with Article 15, precludes national legislation which provides that failure to comply with an order of the public authority to leave the national territory within a specified period constitutes an offence punishable by a term of imprisonment of up to four years, (6) since such legislation deprives those articles of Directive 2008/115 of their practical effect.
46. That conclusion cannot be called in question by the argument that criminal law falls within the Member States’ sphere of competence and not within that of the European Union. (7)
47. It has consistently been held that European Union law places limits on that competence, (8) which should be exercised by Member States in such a way that they are able to fulfil their obligations under EU law, including the obligation to achieve the result intended by the directive arising under the third paragraph of Article 288 TFEU. The criminal legislation cannot compromise the effectiveness of provisions of EU law, as is the case, in my opinion, in the relationship between, on the one hand, the national legislation establishing the offence of failure to comply with an order of the public authority to leave the national territory within a specified period, punishable by a term of imprisonment of up to four years, and, on the other, Article 8(1) of Directive 2008/115, read in conjunction with Article 15 of that directive, which requires Member States to take all the necessary measures, including detention, to enforce the return decision and also to refrain from taking measures of such a kind as to compromise the enforcement of that decision.
48. It is also appropriate to consider the nature of Article 8(1) of Directive 2008/115, read in conjunction with Article 15 of that directive. The obligations imposed on Member States by those provisions, which I have described in the preceding point of the present View, are formulated clearly and unconditionally and require no particular implementing measure. The obligations thus placed on Member States have as their counterpart a right enjoyed by third-country nationals illegally staying on the territory of the Member States. According to the Court’s consistent case-law, the provision in question is therefore one of the provisions of the directive that are capable of having direct effect authorising an individual to rely on them as against the State which failed to transpose the directive within the prescribed period, for the purposes of having national legislation which is incompatible with those provisions disapplied. (9) In such a situation, the national court must give precedence to the provisions of the directive over those of the conflicting national legislation. (10)
49. In accordance with the foregoing, I consider that the Court’s answer to the questions referred for a preliminary ruling should be that Directive 2008/115, and in particular Article 8(1) thereof, read in conjunction with Article 15, must be interpreted as precluding national legislation which provides that failure to comply with an order of the public authority to leave the national territory within a specified period constitutes an offence punishable by up to four years’ imprisonment.
Conclusion
50. In the light of the foregoing considerations, I propose that the Court should answer the questions referred by the Corte d’appello di Trento as follows:
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, and in particular Article 8(1) thereof, read in conjunction with Article 15, must be interpreted as precluding national legislation which provides that failure to comply with an order of the public authority to leave the national territory within a specified period constitutes an offence punishable by up to four years’ imprisonment.
(1) .
(2)
–	OJ 2008 L 348, p. 98.
(3)
–	The Questore is a senior local police authority.
(4)
–	See, to that effect, Case C‑222/04 Cassa di Risparmio di Firenze and Others
[2006] ECR I-289, paragraph 63, and also Joined Cases C‑128/10 and C‑129/10 Naftiliaki Etaireia Thasou and Amaltheia I Naftiki Etaireia
[2010] ECR I-0000, paragraph 40.
(5)
–	The European Court of Human Rights regularly reiterates that this is a well-established principle of international law: see, for example, ECHR, Moustaquim v. Belgium, judgment of 18 February 1991, Series A No 193, § 43, and also Riad and Idiab v. Belgium, 24 January 2008, § 94.
(6)
–	That does not mean, of course, that in the return procedure a third-country national cannot be arrested or convicted for another offence provided for in national law.
(7)
–	See, to that effect, Case C‑440/04 Commission
v Council
[2007] ECR I-9097, paragraph 66 and the case-law cited.
(8)
–	See, to that effect, Joined Cases C‑338/04, C‑359/04 and C‑360/04 Placanica and Others
[2007] ECR I-1891, paragraph 68.
(9)  –	See, to that effect, Case 152/84 Marshall
[1986] ECR 723, paragraph 46, and Case C‑203/10 Auto Nikolovi
[2011] ECR I-0000, paragraph 64.
(10)  – 	See, to that effect, Case 190/87 Moormann
[1988] ECR 4689, paragraph 23.