OPINION OF ADVOCATE GENERAL

WATHELET

delivered on 25 June 2014 ( 1 )

Case C‑249/13

Khaled Boudjlida

v

Préfet des Pyrénées-Atlantiques

(Request for a preliminary ruling from the Tribunal administratif de Pau (France))

‛Area of freedom, security and justice — Directive 2008/115/EC — Return of illegally staying third-country nationals — Procedure for issuing a return decision — Principle of respect for the rights of defence — Right to be heard before the adoption of a decision likely to affect the interests of an illegally staying third-country national — Extent of the rights of defence and of the right to be heard — Right to be able to express a point of view with a sufficient period of reflection — Right to enjoy the assistance of counsel — Limitations on the right to be heard’

I – Introduction

1. This request for a preliminary ruling, lodged at the Court Registry on 6 May 2013 by the Tribunal administratif de Pau (France), concerns the nature and scope of the right to be heard under Article 41(2)(a) of the Charter of Fundamental Rights of the European Union (the ‘Charter’) before the adoption of a return decision pursuant to 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. ( 2 )

2. The request has been made in proceedings between Mr Boudjlida and the Prefect of Pyrénées-Atlantiques. Mr Boudjlida seeks, in particular, annulment of the decision of 15 January 2013 by which the Prefect of Pyrénées-Atlantiques refused to grant him a residence permit, obliged him to leave French territory within a period of 30 days and designated Algeria, or any other country as regards which he could demonstrate that he had a right lawfully to be admitted, as the destination of his potential removal.

3. In this Opinion, I shall examine the conditions under which, and the procedures in accordance with which, an illegally staying third-country national to whom a return decision is to be issued must be able to exercise his right to be heard as established by the case-law of the Court and confirmed by Article 41(2)(a) of the Charter, and whether, in particular, that right includes the right to be put in a position to analyse all the information relied on against him as regards his right of residence, to express his point of view after a period of reflection and to enjoy the assistance of counsel of his own choosing.

II – Directive 2008/115

4. Article 3 of Directive 2008/115, headed ‘Definitions’, provides: ‘For the purpose of this Directive: … (4) “return decision” means an administrative or judicial decision or act, stating or declaring the stay of a third-country national to be illegal and imposing or stating an obligation to return …’

5. Article 5 of Directive 2008/115, headed ‘Non-refoulement, best interests of the child, family life and state of health’, provides: ‘When implementing this Directive, Member States shall take due account of: (a) the best interests of the child; (b) family life; (c) the state of health of the third-country national concerned, and respect the principle of non-refoulement.’

6. Article 6 of the directive, headed ‘Return decision’, provides: ‘1. Member States shall issue a return decision to any third-country national staying illegally on their territory, without prejudice to the exceptions referred to in paragraphs 2 to 5. … 4. 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. … 6. This Directive shall not prevent Member States from adopting a decision on the ending of a legal stay together with a return decision and/or a decision on a removal and/or entry ban in a single administrative or judicial decision or act …’

III – The dispute in the main proceedings and the questions referred for a preliminary ruling

7. Mr Boudjlida, an Algerian national, arrived in France on 26 September 2007 and obtained several student residence permits. He did not apply for his last residence permit to be renewed, which expired on 31 October 2012, and did not ask for a new permit to be issued.

8. Although he was staying illegally on French territory, he sought, on 7 January 2013, to register himself as a self-employed businessman with the Union de recouvrement des cotisations de la sécurité sociale et d’allocations familiales (Union for recovery of social security and family allowance contributions) (‘Urssaf’) in order to set up a micro-enterprise in the field of engineering.

9. As he was staying illegally, he was summoned by the border police to an interview on 15 January 2013, which he voluntarily attended. Mr Boudjlida was heard by the border police regarding his right to stay in France. The interview lasted 30 minutes and covered his application to register as a self-employed businessman, the circumstances of his arrival in France, the conditions of his stay as a student since that date and his family ties in France and Algeria. On being asked whether he agreed to leave France if such was the prefecture’s decision, he answered in the affirmative.

10. Following that interview, the Prefect of Pyrénées-Atlantiques adopted a decision on the same day, 15 January 2003, obliging Mr Boudjlida to leave French territory, granting him a period for voluntary return of 30 days and designating Algeria, in particular, as his country of destination.

11. On 18 February 2013 Mr Boudjlida lodged an application for annulment of that decision with the Tribunal administratif de Pau.

12. Mr Boudjlida claimed in particular before the referring court that the decision of 15 January 2013 was vitiated by an error in law because, in the light of his integration in France, his experience as a student and the presence in France of two of his uncles (who are university teachers), it would cause disproportionate interference with his private life. He also claimed that the period of 30 days was too short for someone who had been present on French territory for more than five years and that he had not actually enjoyed the right to be properly heard before the adoption of the decision ordering him to leave French territory.

13. The Prefect of Pyrénées-Atlantiques submitted that no decision refusing a residence permit had been taken in respect of Mr Boudjlida. While he had, without difficulty, obtained the renewal of his residence permits between 26 September 2007 and 31 October 2012, he did not apply for the renewal of his last permit under the conditions laid down in the French legislation; that is to say, in the two months preceding the expiry of the previous permit. According to the Prefect of Pyrénées-Atlantiques, Mr Boudjlida was therefore staying illegally on the date of the contested decision. He adds that the obligation to leave French territory was well-founded as, in the present case, the foreign national was staying illegally. Moreover, in the absence of stronger family ties in France than in the country of origin, the decision at issue is not a disproportionate interference with Mr Boudjlida’s right to lead his private and family life. Furthermore, the period allowed for the execution of that obligation is the period normally applied in such cases and, according to the Prefect of Pyrénées-Atlantiques, no special circumstances justifying a longer period were claimed.

14. The Prefect of Pyrénées-Atlantiques defends the legality of his decision by referring to a judgment of the Cour administrative d’appel de Lyon (Administrative Appeals Court, Lyon) finding that the right to be heard laid down in Article 41 of the Charter of Fundamental Rights of the European Union does not mean that the competent authorities must organise an interview on their own initiative or invite the party concerned to submit his observations, an infringement of that right being, moreover, capable of affecting the regularity of the procedure only if the interested party establishes that he was thereby deprived of the possibility of submitting relevant information which might have influenced the content of the decision (judgment of 14 March 2013, application No 12LY02737).

15. The prefect also stated that Mr Boudjlida’s right to be heard had been respected, as he was given an interview with the police for 30 minutes concerning his application for registration as a self-employed businessman, the circumstances of his arrival in France, the conditions of his stay as a student since that date and his family situation. It was apparent from that interview that he was staying illegally, that he had no more ties in France than in Algeria and that no special circumstances justified a longer period for voluntary departure.

16. The referring court points out that neither Directive 2008/115, nor the provisions of French law which implement it, have laid down the conditions on which a foreign national must be heard before a return decision, which, by definition, affects him adversely, is issued to him. It considers, however, that it is clear from the judgment in M., C‑277/11, EU:C:2012:744, that, by virtue of the right established by Article 41(2)(a) of the Charter, the authorities must, before requiring an illegally staying foreign national to leave national territory, put him in a position to be heard, even if Directive 2008/115 and the French legislation which implements it do not so expressly provide.

17. According to that court, the rights of the defence and their corollary, the right to be heard, require, in the more general context of the adversarial principle, that the person adversely affected by an individual measure be put in a position to analyse all of the information relied on against him ( 3 ) and to express his views, ( 4 ) following a period of reflection which is sufficient, though adapted to the necessity for the administrative authority to act effectively, ( 5 ) if necessary with the aid of legal counsel as from the preliminary-inquiry stage. ( 6 ) Nevertheless, it considers that, in view of the case-law cited above, the various components of the adversarial principle and of the rights of the defence are dependent upon the nature of the aims pursued by authorities and the prerogatives they enjoy in order to achieve them. It therefore considers that it is not certain that these components are all linked to the right to be effectively heard laid down in Article 41 of the Charter.

18. The referring court considers that it must also be ascertained whether the balance between, on the one hand, the need to observe Article 41 of the Charter of Fundamental Rights and, on the other hand, that of implementing an effective return policy may justify one or more adjustments to or limitations of an illegally staying third country national’s right to be put in a position to analyse the information relied on against him as regards his right of residence, to express his point of view, in writing or orally, with a sufficient period of reflection and, if necessary, with the assistance of counsel of his own choosing, and, if so, whether the scope of those adjustments or limitations is dependent upon the duration and the nature of his ties to the Member State of the European Union in which he resides or upon any other criteria which should be taken into account.

19. In these circumstances, the Tribunal administratif de Pau decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling: ‘(1) What is the extent of the right to be heard laid down by Article 41 of the [Charter] for an illegally staying third-country national in respect of whom a decision falls to be taken as to whether or not he is to be returned? In particular, does that right include the right to be put in a position to analyse the information relied on against him as regards his right of residence, to express his point of view, in writing or orally, with a sufficient period of reflection, and to enjoy the assistance of counsel of his own choosing? (2) If necessary, must the extent of that right be adjusted or limited in view of the general interest objective of the return policy set out in Directive [2008/115]? (3) If so, what adjustments or limitations must be made, and on the basis of what criteria should they be established?’

IV – Procedure before the Court

20. Written observations were submitted by Mr Boudjlida, the French Government, the Netherlands Government and the European Commission. At the hearing on 8 May 2014, Mr Boudjlida, the French Government and the Commission presented oral argument.

V – Analysis

A – Arguments of the parties

21. Mr Boudjlida considers that he was unable to put forward his arguments or debate the grounds for his return as the prefecture did not issue its return decision during an inter partes administrative procedure. He states that the return decision ‘becomes automatic once the prefecture establishes the illegality of the stay and there is no real possibility of defending oneself effectively before the decision is taken, in view of the immediacy of the decision to oblige the person to leave French territory, there being no other recourse in practice than to bring the matter before the administrative court in order to contest it subsequently’.

22. Mr Boudjlida observes that he was never formally heard either on the renewal of his right of residence or on a return decision by the prefect’s staff, who have sole competence in this matter. He considers that the interview with the police did not enable him to request permission to stay or to put forward his arguments to them against a return decision, at a time when he was totally unaware of what decision the administrative authority was going to take. Mr Boudjlida could not possibly imagine that a return decision could be taken the same day without his being heard on the grounds for it being issued. He was therefore unable to defend himself against it, as he had not been heard on the planned content of the return decision. Mr Boudjlida states that he explained at the time of the interview with the police that he was awaiting a reply to his application for naturalisation and, in answer to the question raised as to whether he agreed to leave French territory if such was the prefecture’s decision, he confirms that he answered that he would be ready to leave the territory if necessary. He considers that there is nothing in that interview indicating that he had the right to present observations and be heard before a return decision which was going to be taken the same day.

23. Mr Boudjlida states that, if he had been informed that a return decision was going to be taken, he would have put forward arguments before the prefecture which might have altered that decision. He adds that, if he had been given the opportunity, he could have relied, prior to the return decision, on disproportionate infringement of the right to respect for his private life and infringement of Article L.313-11-7 of the Code de l’entrée et du séjour des étrangers et du droit d’asile (Code on the Entry and Stay of Foreign Nationals and the Right of Asylum, ‘CESEDA’), in view of his complete integration in France.

24. Mr Boudjlida also observes that ‘one can only conclude that the single 30-minute interview with the police in no way reflects the content of the right to be heard by the authorities during the administrative procedure as laid down by’ the Court in its case-law. The return decision was therefore issued following the police interview without his having the aid of counsel and in breach of the Court’s case-law.

25. In Mr Boudjlida’s view, the right to good administration, as laid down in particular by Article 41(2) of the Charter, includes, in the context of implementation of Directive 2008/115, the right of every person to be heard before any individual measure which would affect him or her adversely is taken. He considers that the right to be heard must be defined as the right of any person to effectively make his views known, in writing or orally, during an administrative procedure before any decision liable to affect him adversely is issued. Mr Boudjlida adds that the content of the right to be heard requires that the person who is the subject of a measure adversely affecting him is put in a position to analyse all the information relied on against him, can express his point of view after an appropriate time for reflection and enjoys the assistance of counsel as of the stage of the inquiry prior to the delivery of the statement of objections.

26. The French Government considers that it is clear from the very wording of Article 41 of the Charter that it is not addressed to Member States but solely to the institutions and bodies of the European Union. ( 7 ) It adds, however, that, according to settled case-law, the right to be heard is a general principle of EU law (‘EU law’) pertaining, on the one hand, to the right to good administration, laid down in Article 41 of the Charter and, on the other, to observance of the rights of defence and the right to a fair trial enshrined in Articles 47 and 48 of the Charter. According to the same government, observance of the right to be heard is required not only of the EU institutions, by virtue of Article 41 of the Charter, but also — because it constitutes a general principle of EU law — of the authorities of each of the Member States when they adopt decisions falling within the scope of EU law, even when the applicable legislation does not expressly provide for such a procedural requirement. ( 8 )

27. The French Government points out that Directive 2008/115 concerns only the return of illegally staying third-country nationals in a Member State and is thus not designed to harmonise in their entirety the national rules on the stay of foreign nationals. ( 9 ) Thus, according to the same government, the procedures for examining the legality of the stay of a third-country national and the procedures for hearing that national, where necessary, during that examination are a matter for the national law of the Member States. However, once the illegality of the stay has been established, the Member States are obliged to issue a return decision under Article 6(1) of Directive 2008/115, except in the specific cases referred to in paragraphs 2 to 5 of that article. As the return decision necessarily follows from the decision finding that the person concerned has stayed illegally, the French Government considers that that person does not have to be heard again before a return decision is issued where, under the law of the Member State concerned, that person was heard during the procedure for examining his right of residence. On the other hand, it considers that, if the law of a Member State does not provide for the person concerned to be heard during the examination of his right to stay, that person should be put in a position to make his observations before a return decision is issued against him.

28. The French Government adds that, as in the main proceedings, a return decision may be issued after the police have examined a third-country national who does not have a valid residence permit. In such a case, the authorities, before issuing a return decision, must examine the personal circumstances of the person concerned and put him in a position to submit his observations regarding a possible right to stay. However, the person concerned must be heard in conditions which do not undermine the effectiveness of the return procedure and take into account both the urgency with which the authorities must act and the risk of absconding. Such a hearing might take place, as in the main proceedings, where the person agrees to go to premises of the police in order to be heard about his circumstances. In other cases, verification of the circumstances of the person concerned might also necessitate temporarily depriving that person of his liberty.

29. In the French Government’s view, although, in the context of the police custody procedure and the administrative detention procedure for verifying the right to stay, French law provides for the possibility of being assisted by a lawyer, that requirement follows only from the fact that the person concerned is then deprived of his or her liberty. On the other hand, the right to enjoy counsel of one’s choosing in the administrative procedure prior to the adoption of a return decision cannot be regarded as a component of the right to be heard. The same government considers that, although the third paragraph of Article 47 of the Charter provides that legal aid must be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice, it is clear from the very wording of that provision that it applies only in the context of judicial proceedings.

30. The French Government proposes, in the alternative, that the answer to the second and third questions should be that Directive 2008/115 must be interpreted as meaning that the extent of the right to be heard may be limited to take into account the objective of that directive, which is to ensure the effective return of illegally staying third-country nationals. In the view of that government, such limitation must be provided for by law, be necessary and proportionate and observe the essential content of that right.

31. The Netherlands Government considers that foreign nationals such as Mr Boudjlida do not derive any right from Article 41 of the Charter in their relations with a Member State. In its view, it is clear from the wording of Article 41 of the Charter that that provision guarantees the right to good administration by the EU institutions and bodies. Therefore, that provision is not addressed to the Member States. ( 10 ) However, the Netherlands Government considers that Article 41 of the Charter is based on a fundamental principle of EU law and that, where the national authorities propose to adopt a decision against a person which adversely affects him, the rights of the defence must be observed. ( 11 )

32. In the view of the Netherlands Government, the rights of the defence include the right to be heard before the adoption of a decision adversely affecting the person concerned. The extent of those rights depends on the specific context of a case and the legal framework applicable. It emphasises that examination of illegally staying foreign nationals is always a matter for the police and/or immigration services. In view of the objectives of Directive 2008/115, it is important for these authorities to clarify rapidly whether the foreign national is staying illegally and, if so, to terminate that stay as soon as possible. The preparation of a decision for this purpose need not automatically be the subject of a detailed written procedure. Obviously, the return decision itself must be issued in writing in accordance with Article 12(1) of Directive 2008/115.

33. The Netherlands Government notes that a return decision constitutes the initial stage of the return procedure. ( 12 ) A return decision establishes that a third‑country national is staying illegally and imposes an obligation to return. As to the determination of the illegality of the stay of a third-country national, the Netherlands Government observes that the legal effects of that finding are not (particularly) oppressive for the foreign national concerned, as the illegality of that person’s stay is already established by the lack of a valid residence permit and is not therefore the result of the return decision.

34. In the view of the Netherlands Government, the competent authorities of a Member State must, pursuant to M., EU:C:2012:744, give the foreign national, during a procedure to determine the legality of his stay in that State, the opportunity to make known his views effectively and pay due attention to the observations he submits in this regard. It considers that, although the authorities concerned must establish whether a foreign national possesses a valid residence permit, they do not have to take into account all rights of residence which the foreign national might (potentially) claim.

35. The Netherlands Government states that Article 6(1) of Directive 2008/115 requires a return decision to be issued to any foreign national staying illegally on the territory of a Member State. As regards the main proceedings, the Netherlands Government notes that Mr Boudjlida is staying illegally in France, as he has not filed an application for renewal of his residence permit. On the basis of the information contained in the reference for a preliminary ruling, it is established that he did not possess a residence permit when the return decision was issued. In these circumstances, the Netherlands Government considers that, in this specific case, the rights of defence have not been infringed. In view of the specific nature of the return decision, the foreign national only needs a limited time to react and, in the view of the Netherlands Government, there is no reason to suppose that, in the main proceedings, the period of reflection has been too short. It adds that it is still possible to appeal against a return decision and that the right to be heard when a return decision is issued does not include the right to enjoy free legal assistance.

36. The Commission observes that the right to be heard in all proceedings is enshrined in Article 41 of the Charter. According to the Commission, although it has been stated that that article of the Charter does not apply to EU institutions and bodies, the Court held in M., EU:C:2012:744, that ‘it must be stated that, as follows from its very wording, that provision is of general application’. ( 13 ) It considers that, where the Member States adopt return decisions, they are implementing EU law and are therefore bound by the obligations resulting from the Charter. ( 14 )

37. The Commission considers that, as the Member States are obliged, under Article 6(1) of Directive 2008/115, to issue a return decision against any illegally staying foreign national, the main purpose of his right to be heard prior to the adoption of a return decision is to make his observations known on the procedures for his return or on the applicability of the exceptions provided for in Article 6(2) to (5) of Directive 2008/115. Prior to that decision, the foreign national may also submit observations on the legality of his stay in order to determine whether he falls within the scope of the return procedure.

38. In the Commission’s view, as Directive 2008/115 lays down practically no rules concerning the adoption of the return decision, it cannot be concluded that the right to be heard requires implementation of an adversarial procedure of the kind laid down for the implementation of Articles 101 TFEU and 102 TFEU. It points out that the purpose of that directive is to establish an effective procedure ensuring the most expeditious return of illegally staying foreign nationals to their country of origin. In the matter of their return, the national court must strike a fair balance between the need to establish ‘an effective return policy as a necessary element of a well managed migration policy’ ( 15 ) and the duty of the Member States to ‘ensure that the ending of the illegal stay of third-country nationals is carried out through a fair and transparent procedure’. ( 16 ) In its view, the scope of the right to be heard may, in certain circumstances, be limited where it is likely to be detrimental to a higher public interest. ( 17 )

39. The Commission considers that, by analogy with the position adopted by the Court in M., EU:C:2012:744, paragraph 95, the right to express one’s point of view, in writing or orally, prior to the adoption of a return decision does not therefore imply that the national authority must inform the intended recipient of the decision which it plans to adopt or notify him of the arguments on which it intends to rely or grant him a period of reflection before adopting that decision. The foreign national will have the opportunity to contest the authorities’ assessment in appeal proceedings.

40. In the Commission’s view, the right to be heard before the adoption of a return decision must allow the authorities to prepare the case file in such a manner that they can take a decision in full knowledge of the facts and state the reasons for it so that, if necessary, the person concerned can legitimately exercise his right of appeal. As to whether the right to be heard includes the right to enjoy the assistance of counsel of one’s own choosing, the Commission points out that Article 13(3) of Directive 2008/115 does not impose an obligation on the Member States to grant legal assistance to illegally staying foreign nationals until they intend to use an effective remedy within the meaning of Article 13(1) of that directive, that is to say, ‘before a competent judicial or administrative authority or a competent body composed of members who are impartial and who enjoy safeguards of independence’.

41. The Commission further states that it follows from the order for reference that Mr Boudjlida is staying illegally, the consequence of which is the adoption of a return decision, and that, before the adoption of that decision, he had the opportunity to make oral observations on the legality of his stay, his family ties in France, his academic career and his integration in the country as well as on his possible removal. In the light of those principles, the Commission considers that the right to be heard seems to have been observed. In the Commission’s view, it is, however, for the national court to assess whether the length of the interview was sufficient to enable Mr Boudjlida to make observations on all the subjects covered so that the competent authority had the necessary information before ordering him to leave French territory in accordance with the procedures laid down in the return decision.

B – Assessment

1. Preliminary observations

42. The scope of the Charter, as regards actions of the Member States, is defined in Article 51(1) thereof, which states that the provisions of the Charter are addressed to the Member States only when they are implementing Union law.

43. As the Court has held, Article 51 ‘of the Charter thus confirms the Court’s case-law relating to the extent to which actions of the Member States must comply with the requirements flowing from the fundamental rights guaranteed in the legal order of the European Union’. ( 18 )

44. In fact, the Court adds, in paragraph 19 of Åkerberg Fransson, EU:C:2013:105, and in paragraph 33 of Pfleger and Others, EU:C:2014:281, ‘[t]he Court’s settled case-law … states, in essence, that the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by EU law, but not outside such situations. In this respect the Court has already observed that it has no power to examine the compatibility with the Charter of national legislation lying outside the scope of EU law. On the other hand, if such legislation falls within the scope of EU law, the Court, when requested to give a preliminary ruling, must provide all the guidance as to interpretation needed in order for the national court to determine whether that legislation is compatible with the fundamental rights the observance of which the Court ensures’.

45. The Court has also held, in paragraph 21 of Åkerberg Fransson, EU:C:2013:105, and in paragraph 34 of Pfleger and Others, EU:C:2014:281, that ‘[s]ince the fundamental rights guaranteed by the Charter must therefore be complied with where national legislation falls within the scope of EU law, situations cannot exist which are covered in that way by EU law without those fundamental rights being applicable. The applicability of EU law entails applicability of the fundamental rights guaranteed by the Charter’.

46. It is true that, although Article 51 of the Charter defines the scope thereof in respect of both the Union and the Member States under the title ‘General provisions governing the interpretation and application of the Charter’, Article 41 of the Charter establishes the right to be heard only in respect of the ‘institutions and bodies of the Union’, ( 19 ) which the Court noted in Cicala, EU:C:2011:868, paragraph 28, cited by the French Government in its written observations, ( 20 ) though the Court did not make this a decisive argument for the approach which it adopted in that judgment.

47. It seems to me neither consistent nor in accordance with the case-law of the Court ( 21 ) for the wording of Article 41 of the Charter to allow the introduction of an exception to the rule laid down in Article 51 thereof enabling the Member States not to apply an article of the Charter, even when they are implementing Union law. I am therefore clearly in favour of the applicability of Article 41 of the Charter to the Member States when they are implementing Union law, but, in any event, as the French Government points out, the right to be heard is, according to settled case-law, a general principle of EU law ‘pertaining, on the one hand, to the right to good administration, laid down in Article 41 of the Charter and, on the other, to observance of the rights of defence and the right to a fair trial enshrined in Articles 47 and 48 of the Charter’. ( 22 ) Accordingly, that right must be observed at least by the authorities ‘of each of the Member States when they adopt decisions falling within the scope of EU law’. ( 23 )

48. As I stated in point 49 of my View in G. and R., C‑383/13 PPU, EU:C:2013:553, ‘[t]he national authorities’ obligation to respect the right of a person to be heard before the adoption of a decision that is liable to affect his interests adversely has long been affirmed in the settled case-law of the Court, and Article 41(2)(a) of the Charter confirms that obligation and establishes it as having constitutional status’.

49. In the present case, the adoption of a return decision by a Member State is an implementation of Article 6(1) of Directive 2008/115 and, therefore, of EU law within the meaning of the case-law of the Court and Article 51(1) of the Charter. It follows that, in such a situation governed by EU law, the Member States must apply the fundamental rights guaranteed by the EU legal order, including the right to be heard, where the national authorities are minded to adopt a measure which will adversely affect an individual. ( 24 )

50. A return decision of this kind, as defined by Article 3(4) and referred to in Article 6(1) of Directive 2008/115, constitutes a measure which will adversely affect the individual to whom it is addressed. By that decision, a Member State is declaring the stay of a third-country national to be illegal and imposing or stating an obligation to return. ( 25 )

51. Recital 6 in the preamble to Directive 2008/115 states that, when Member States adopt return decisions, they must do so through a fair and transparent procedure.

52. However, Directive 2008/115 does not establish a specific procedure for hearing a third-country national before the adoption of a return decision. ( 26 ) The procedural guarantees provided for in Chapter III of Directive 2008/115 only concern the form of the return decision (Article 12), ( 27 ) the remedies (Article 13) and the safeguards pending return (Article 14).

53. That said, in accordance with the Court’s case-law, observance of the right to be heard is required even where the applicable legislation does not expressly provide for such a procedural requirement. ( 28 )

54. It follows that the conditions under which observance of the rights of defence of illegally staying third-country nationals and the consequences of infringement of those rights are to be ensured fall within the scope of national law, in so far as the rules adopted to that effect are not more unfavourable than those to which individuals in comparable situations under national law are subject (the principle of equivalence) and that they do not make it impossible in practice or excessively difficult to exercise the rights of defence conferred by the European Union legal order (the principle of effectiveness). ( 29 )

55. However, as the Court held in its judgment in M., EU:C:2012:744, paragraph 87 and the case-law cited, ‘[t]he right to be heard guarantees every person the opportunity to make known his views effectively during an administrative procedure and before the adoption of any decision liable to affect his interests adversely’. The Court adds in the same judgment that ‘[t]hat right also requires the authorities to pay due attention to the observations thus submitted by the person concerned, examining carefully and impartially all the relevant aspects of the individual case and giving a detailed statement of reasons for their decision’. ( 30 )

56. Therefore, the procedural autonomy of the Member States together with the absence of a specific procedure in Directive 2008/115 cannot result in a third‑country national being deprived of the right to be heard by the competent national authority before the adoption of a return decision.

57. Article 52(1) of the Charter nevertheless allows limitations on the exercise of the rights enshrined in the Charter, in so far as the limitation concerned is provided for by law, respects the essence of the fundamental right in question and, subject to the principle of proportionality, it is necessary and genuinely meets objectives of general interest recognised by the European Union. ( 31 ) It follows that the rights of defence do not constitute unfettered prerogatives and may be restricted in certain circumstances. ( 32 )

58. Before examining more specifically the application of these principles to the circumstances of the main proceedings, it should be borne in mind that the objective of the right to be heard established by Article 41(2)(a) of the Charter is, first, to enable the case to be examined and the facts to be established in as precise and correct a manner as possible and, second, to ensure that the person concerned is in fact protected. ( 33 ) That provision is intended, in particular, to ensure that any decision adversely affecting a person is adopted in full knowledge of the facts.

2. The first question referred for a preliminary ruling

59. The first question concerns the elements which must form part of the right to be heard, as laid down by the Court’s case-law and established by Article 41(2)(a) of the Charter, in the context of adoption of a return decision and, more particularly, whether the hearing of Mr Boudjlida conducted by the border police on 15 January 2013 complied with those requirements.

a) General considerations

60. The hearing of the person concerned is not only intended to ensure that a decision adversely affecting him is adopted in full knowledge of the facts ( 34 ) but must also enable the authorities to fulfil their obligation to provide adequate reasoning for their decisions. ( 35 ) Adequate reasoning enables, first, the person concerned to be aware of the grounds for the return decision issued so that he can defend his rights in the event of an appeal against that decision and, second, the authority or body referred to in Article 13(1) of Directive 2008/115 to review the legality of the decision.

61. That said, the right of any person to be heard before an individual measure adversely affecting him is taken against him must be distinguished from the question of the proportionality or legality of that measure, since the right to be heard does not imply the right to obtain a favourable decision. In fact, verification of observance of the right to be heard is not concerned with whether the return decision is well founded. Those are two distinct grounds which may be relied on in an appeal as provided for in Article 13 of Directive 2008/115. ( 36 )

62. Moreover, the detailed expression of the right to be heard in the context of adoption of a return decision cannot be divorced from the objective of Directive 2008/115 which is to fix ‘clear, transparent and fair rules … to provide for an effective return policy as a necessary element of a well managed migration policy’. ( 37 )

63. It should be noted in this regard that, according to settled case-law, once the illegality of the stay has been established, the competent national authorities must, under Article 6(1) of that directive and without prejudice to the exceptions provided for in Article 6(2) to (5) thereof, issue a return decision. ( 38 )

64. In the light of that obligation of the Member States, I consider, like the Commission, that the purpose of the right to be heard before the adoption of a return decision is to hear the person concerned on the legality of his stay, the possible application of the exceptions provided for in Article 6(2) to (5) of the said directive and the procedures for his return. I also consider that, pursuant to Article 5 of Directive 2008/115, headed ‘Non-refoulement, best interests of the child, family life and state of health’, when the Member States implement that directive, they must, first, take due account of the best interests of the child, family life and the state of health of the third-country national concerned and, second, respect the principle of non-refoulement. It follows that, where the competent national authority plans to adopt a return decision, that authority must necessarily respect the obligations imposed by Article 5 of Directive 2008/115 and hear the person concerned in this regard.

65. Moreover, it is for the person concerned to cooperate with the competent national authority during his hearing by providing it with all relevant information on his personal and family circumstances and, in particular, any information which suggests that a return decision should not be issued, since, at that stage, the question of the legality of the stay of the person concerned does not even arise if that person has not even taken adequate steps to obtain the right of residence in the State concerned.

b) The procedure relating to the right to be heard

66. The referring court makes particular mention in its questions and order for reference of the foreign national having the possibility of analysing all the information relied on against him, which requires the national authority to notify him of it in advance and allow him a sufficient period of reflection before a hearing (1), the foreign national’s right to assistance of counsel of his own choosing (2) and sufficient time to be heard during the hearing (3). The period of 30 days to leave France granted to Mr Boudjlida was also mentioned (4).

i) Prior notification of the authority’s arguments and period of reflection

67. In the absence of provisions of EU law establishing a specific procedure for guaranteeing to illegally staying third-country nationals the right to be heard before the adoption of a return decision, ( 39 ) I consider that Article 41(2)(a) of the Charter cannot be interpreted as meaning that the competent national authority is obliged, before, issuing a return decision, to supply the person concerned with the evidence on which it intends to base that decision and to seek that person’s observations in that regard after a period of reflection. ( 40 )

68. No such adversarial procedure is established by Directive 2008/115.

69. None the less, an exception must be admitted to the foregoing where the third-country national could not reasonably suspect what evidence might be relied on against him or could only reasonably respond to it after certain verifications or steps taken, in particular, to obtain supporting documents.

70. As to the main proceedings, it is clear from the report of his interview with the border police that, on 15 January 2013, Mr Boudjlida was asked to present himself at premises of the police either on the same day, 15 January 2013, or in the morning of 16 January 2013 in order to ‘examine [his] right to stay’. He decided, of his own volition, to present himself on 15 January 2013. It follows that he also decided not to take advantage of the one-day period of reflection offered to him by the police or, moreover, to have recourse to legal counsel.

71. It is clear from the report of the interview of Mr Boudjlida that he knew that his ‘residence permit was out of date’ and that he must have been aware that he was staying illegally in France owing to the non-renewal of his residence permit, which had expired on 31 October 2012. Moreover, the police explicitly informed him that he might be the subject of a return decision and asked him whether he agreed to leave France if such a decision was issued against him. Mr Boudjlida answered ‘of course’ to that question, adding that ‘[he] agree[d] to wait on [the] premises for the response of the Prefecture of Pau, which may ask [him] to leave French territory or place [him] in a detention centre or ask [him] to regularise [his] situation’.

72. Therefore, subject to verification by the referring court, Mr Boudjlida was informed of the reason for the interview in question and was aware of the subject on which he was to be heard and the possible consequences of that hearing. Moreover, subject to the same reservation, the interview clearly concerned the information that was relevant and necessary for the purpose of implementing Directive 2008/115 whilst respecting the right of the person concerned to be heard.

73. In fact, during his interview with the police, Mr Boudjlida was heard, in particular, on his identity, nationality, civil status, the illegality of his stay in France, the administrative steps that he had taken in order to try to legalise his stay, the total duration of his stay in France, his old residence permits, his academic and professional work, his resources and his family situation in France and Algeria. Finally, the police asked him if he agreed ‘to leave French territory if such was the decision of the Prefecture of Pau’. ( 41 )

ii) Right to the assistance of counsel

74. Under Article 13 of Directive 2008/115, the right to legal assistance is provided for only after the adoption of a return decision ( 42 ) and in the context of an appeal contesting such a decision. ( 43 ) In certain circumstances, free legal assistance must be granted on request. ( 44 )

75. That said, nobody can be prevented from calling on the aid of legal counsel at their own expense during their hearing by the competent national authorities, provided that the exercise of that right does not affect the proper conduct of the proceedings and does not undermine the effective implementation of Directive 2008/115. Mr Boudjlida did not seek to resort to legal counsel at his hearing.

iii) Length of the interview

76. Mr Boudjlida and the Commission comment on the short duration, namely 30 minutes, of the interview in question in the main proceedings. I do not consider that the length of the interview is a decisive factor. The main thing is to ascertain whether Mr Boudjlida was sufficiently heard on the legality of his stay and on his personal circumstances, ( 45 ) which I consider to be clear from points 70 to 73 of this Opinion.

iv) The period granted for leaving French territory

77. On this subject, I note that Article 7(1) of Directive 2008/115 provides, in particular, for ‘an appropriate period for voluntary departure of between seven and thirty days’. Moreover, under Article 7(2) of Directive 2008/115, Member States must, ‘where necessary’, extend ‘the period for voluntary departure by an appropriate period, taking into account the specific circumstances of the individual case, such as the length of stay, the existence of children attending school and the existence of other family and social links’.

78. It is clear from the report of the interview of Mr Boudjlida that he was heard, in particular, on the length of his stay in France, his studies in France and his family links in France. I consider, subject to verification by the referring court, that he was heard on the possible application of the criteria enabling the period for departure laid down in Article 7(2) of Directive 2008/115 to be extended. As to the adequacy of the period for departure granted to Mr Boudjlida in the light, in particular, of his observations during his interview by the police, it is clear that such an assessment concerns the substantive legality of the measure. ( 46 )

79. In the light of all these factors, I propose that the Court should answer the first question referred for a preliminary ruling as follows: — the right of an illegally staying third-country national to be heard before a return decision is issued to him requires the competent national authority to hear the person concerned on the legality of his stay, the possible application of Article 5 of Directive 2008/115 and the exceptions provided for in Article 6(2) to (5) of that directive and on the procedure for his return. — On the other hand, except where the third-country national could not reasonably suspect that a return decision might be issued or what evidence might be relied on against him, which would require him to take certain steps for the purpose of verification or to obtain supporting documents, EU law does not require the competent national authority to inform that person before the hearing organised with a view to issuing that decision that it intends to issue a return decision or to supply him with the evidence on which it intends to base that decision or to allow him a period of reflection before seeking his observations. — Although, before the adoption by the competent national administrative authority of a return decision, the third-country national can have recourse to legal counsel during his hearing by the competent national authorities, provided that the exercise of that right does not affect the proper conduct of the proceedings and does not undermine the effective implementation of Directive 2008/115, EU law does not require Member States to bear the cost of that assistance in the form of free legal aid.

3. Second and third questions

80. By these questions, the referring court asks the Court whether, and, where appropriate, on what criteria, the right of an illegally staying third-country national to be heard under Article 41(2)(a) of the Charter before a return decision is issued to him must be adjusted or limited in view of the general interest objective of the return policy set out in Directive 2008/115.

81. In view of my answer to the first question, I propose that the second and third questions should be answered in the negative.

VI – Conclusion

82. In the light of the foregoing considerations, I propose that the Court should answer the questions referred by the Tribunal administratif de Pau as follows: (1) The right of an illegally staying third-country national to be heard before a return decision is issued to him requires the competent national authority to hear the person concerned on the legality of his stay, the possible application of Article 5 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 and the exceptions provided for in Article 6(2) to (5) of that directive, and on the procedure for his return. On the other hand, except where the third-country national could not reasonably suspect that a return decision might be issued or what evidence might be relied on against him, which would require him to take certain steps for the purpose of verification or to obtain supporting documents, EU law does not require the competent national authority to inform that person before the hearing organised with a view to issuing that decision that it intends to issue a return decision or to supply him with the evidence on which it intends to base that decision or to allow him a period of reflection before seeking his observations. Although, before the adoption by the competent national administrative authority of a return decision, the third-country national can have recourse to legal counsel during his hearing by the competent national authorities, provided that the exercise of that right does not affect the proper conduct of the proceedings and does not undermine the effective implementation of Directive 2008/115, EU law does not require Member States to bear the cost of that assistance in the form of free legal aid. (2) There is no need to adjust or otherwise limit the content of the right to be heard in view of the general interest objective set out in Directive 2008/115.

( 1 ) Original language: French.

( 2 ) OJ 2010 L 348, p. 98.

( 3 ) Judgment in Musique Diffusion française and Others v Commission, 100/80 to 103/80, EU:C:1983:158, paragraphs 14 to 23.

( 4 ) Judgment in Hoechst v Commission, 46/87 and 227/88, EU:C:1989:337, paragraphs 52 and 56.

( 5 ) Judgment in Dokter and Others, C‑28/05, EU:C:2006:408, paragraphs 73 to 79.

( 6 ) Hoechst v Commission, EU:C:1989:337, paragraphs 14 to 16, concerning the right to the aid of legal counsel as from the stage of the inquiry prior to the delivery of the statement of objections in the area of competition law.

( 7 ) Judgment in Cicala, C‑482/10, EU:C:2011:868, paragraph 28.

( 8 ) Judgment in M., C‑277/11, EU:C:2012:744, paragraphs 82 to 86.

( 9 ) Judgment in Achughbabian, C‑329/11, EU:C:2011:807, paragraph 28.

( 10 ) Judgment in Cicala, EU:C:2011:868, paragraph 28.

( 11 ) Judgments in Commission v Lisrestal and Others, C‑32/95 P, EU:C:1996:402, paragraph 30, and Sopropé, C‑349/07, EU:C:2008:746, paragraph 26.

( 12 ) Judgment in El Dridi, C‑61/11 PPU, EU:C:2011:268, paragraphs 35 and 36.

( 13 ) Paragraph 84.

( 14 ) Judgment in Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraph 21.

( 15 ) Recital 4 in the preamble to Directive 2008/115.

( 16 ) Recital 6 in the preamble to Directive 2008/115.

( 17 ) Opinion of Advocate General Bot in M., C‑277/11, EU:C:2012:253, point 41.

( 18 ) Judgments in Åkerberg Fransson, EU:C:2013:105, paragraph 18, and Pfleger and Others, C‑390/12, EU:C:2014:281, paragraph 32.

( 19 ) The current scope of Article 41 of the Charter was discussed within the praesidium of the convention which drew up the Charter. Amendments designed, on the one hand, to extend and, on the other hand, to clarify its scope were proposed without being accepted. See Draft Charter of Fundamental Rights of the European Union — Summary of amendments presented by the Praesidium (Charte 4284/00 CONVENT 37.

( 20 ) See point 26 of this Opinion.

( 21 ) See judgment in N., C‑604/12, EU:C:2014:302, paragraphs 49 and 50.

( 22 ) See observations of the French Government in point 26 of this Opinion.

( 23 ) Idem.

( 24 ) Judgment in Sopropé, EU:C:2008:746, paragraph 36.

( 25 ) See Articles 3(4) and 6(1) of Directive 2008/115.

( 26 ) One cannot but be surprised by the absence of such a specific procedure in Directive 2008/115 given the major impact that a return decision can have on the life of a human being, when such a procedure was devised to ensure observance of the right to be heard in matters of customs and competition law! See, concerning customs duties, Article 22(6) of Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (OJ 2013 L 269, p. 1 and corrigendum OJ 2013 L 287, p. 90), and my Opinion in Kamino International Logistics and Datema Hellman Worldwide Logistics, C‑129/13 and C‑130/13, EU:C:2014:94, points 51 to 57. Concerning competition law, Article 27(1) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [81 EC] and [82 EC] (OJ 2003 L 1, p. 1), which provides that ‘[b]efore taking decisions as provided for in Articles 7, 8, 23 and Article 24(2), the Commission shall give the undertakings or associations of undertakings which are the subject of the proceedings conducted by the Commission the opportunity of being heard on the matters to which the Commission has taken objection. The Commission shall base its decisions only on objections on which the parties concerned have been able to comment. Complainants shall be associated closely with the proceedings’. My emphasis.

( 27 ) The first subparagraph of Article 12(1) of Directive 2008/115 provides that ‘[r]eturn decisions … shall be issued in writing and give reasons in fact and in law as well as information about available legal remedies’.

( 28 ) See judgment in M., EU:C:2012:744, paragraph 86.

( 29 ) See judgment in G. and R., C‑383/13 PPU, EU:C:2013:533, paragraph 35. The obligation of the Member States to observe the principle of effectiveness is reaffirmed by the second subparagraph of Article 19(1) TEU, which states that they ’shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law’.

( 30 ) Judgment in M., EU:C:2012:744, paragraph 88 and the case-law cited.

( 31 ) See, to this effect, judgments in Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 101, and Schwarz, C‑291/12, EU:C:2013:670, paragraph 34.

( 32 ) See judgment in Dokter and Others, C‑28/05, EU:C:2006:408, paragraph 75. See also G. and R., EU:C:2013:533, paragraph 36, in which the Court ruled that, while the Member States may allow the exercise of the rights of defence of illegally staying third-country nationals under the same rules as those governing internal situations, those rules must comply with EU law and, in particular, must not undermine the effectiveness of Directive 2008/115.

( 33 ) See, to this effect, Opinion of Advocate General Bot in M., EU:C:2012:253, points 35 and 36.

( 34 ) See point 58 of this Opinion.

( 35 ) See Articles 12(1) of Directive 2008/115 and 41(2)(c) of the Charter.

( 36 ) See, by analogy, judgment in Solvay v Commission, C‑455/11 P, EU:C:2013:796, paragraph 89 and the case-law cited.

( 37 ) Recital 4 in the preamble to Directive 2008/115. (My emphasis).

( 38 ) See, to this effect, judgments in El Dridi, C‑61/11 PPU, EU:C:2011:268, paragraph 35, and Achughbabian, EU:C:2011:807, paragraph 31. In fact, Directive 2008/115 concerns only the return of illegally staying third-country nationals and is thus not designed to harmonise in their entirety the rules of the Member States on the stay of foreign nationals. See judgments in Achughbabian, EU:C:2011:807, paragraph 28, and Sagor, C‑430/11, EU:C:2012:777, paragraph 31.

( 39 ) See point 52 of this Opinion.

( 40 ) See, by analogy, judgment in M., EU:C:2012:744, paragraphs 60 and 61.

( 41 ) See point 71 of this Opinion.

( 42 ) Where appropriate, return-related decisions referred to in Article 12(1) of Directive 2008/115, namely, entry-ban decisions and decisions on removal.

( 43 ) It must be emphasised that Mr Boudjlida was not subject to criminal proceedings in the main proceedings and was not in police custody or deprived of his liberty during his hearing by the police. It should be noted that, under Article 3(2)(a) of Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty (OJ 2013 L 294, p. 1), ‘[s]uspects or accused persons shall have access to a lawyer’‘before they are questioned by the police’. Under Article 15(1) of Directive 2013/48, Member States must bring into force the laws, regulations and administrative provisions necessary to comply with that directive by 27 November 2016 at the latest.

( 44 ) See Article 13(4) of Directive 2008/115. Under Article 4(3) of Directive 2008/115, Member States may adopt or maintain provisions that are more favourable to the persons concerned, provided that such provisions are compatible with Directive 2008/115.

( 45 ) See point 64 of this Opinion.

( 46 ) See point 61 of this Opinion.