EN Official Journal of the European Union C 344/31

Judgment of the Court (Fourth Chamber) of 19 September 2013 (request for a preliminary ruling from the Amtsgericht Laufen — Germany) — Criminal proceedings against Gjoko Filev, Adnan Osmani

(Case C-297/12) (1)

(Area of freedom, security and justice - Return of illegally staying third-country nationals - Directive 2008/115/EC - Article 11(2) - Return decision coupled with an entry ban - Length of the entry ban restricted to five years in principle - National legislation providing for an entry ban of unlimited duration in the absence of an application for a limitation - Article 2(2)(b) - Third-country nationals subject to return as a criminal law sanction or as a consequence of a criminal law sanction - Non-application of the directive)

2013/C 344/53

Language of the case: German

Referring court

Amtsgericht Laufen

Parties to the criminal proceedings

Gjoko Filev, Adnan Osmani

Re:

Request for a preliminary ruling — Amtsgericht Laufen — Interpretation of Articles 2(2)(b) and 11(2) 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) — Prohibition on entry into national territory, linked to a return decision — Maximum duration of that entry ban — National law which provides for a prohibition on entry into national territory of an unlimited duration for foreigners who were the subject of an expulsion order and which makes the infringement of that entry ban subject to a fine or sentence of up to three years imprisonment — Late transposition of the directive — Direct effect of its provisions — Possibility, under national law, to apply for the effects of the entry ban to be limited in time — Length of the entry ban restricted, in that case, to five years, subject to the absence of a criminal conviction or any threat to public order and public security — Third-country nationals who were the subject of an expulsion order made more than five years previously

Operative part of the judgment

1. Article 11(2) 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 must be interpreted as precluding a provision of national law, such as Article 11(1) of the Law on the residence, gainful employment and integration of foreign nationals on Federal territory (Gesetz über den Aufenthalt, die Erwerbstätigkeit und die Integration von Ausländern im Bundesgebiet), which makes the limitation of the length of an entry ban subject to the making by the third-country national concerned of an application seeking to obtain the benefit of such a limit.

2. Article 11(2) of Directive 2008/115 must be interpreted as precluding breach of an entry and residence ban in the territory of a Member State, which was handed down more than five years before the date either of the re-entry into that territory of the third-country national concerned or of the entry into force of the national legislation implementing that directive, from giving rise to a criminal sanction, unless that national constitutes a serious threat to public order, public security or national security.

3. Directive 2008/115 must be interpreted as precluding a Member State from providing that an expulsion or removal order which predates by five years or more the period between the date on which that directive should have been implemented and the date on which it was implemented, may subsequently be used as a basis for criminal proceedings, where that order was based on a criminal law sanction within the meaning of Article 2(2)(b) of that directive and where that Member State exercised the discretion provided for under that provision.

(1) OJ C 250, 18.8.2012.