Provisional text

OPINION OF ADVOCATE GENERAL

RANTOS

delivered on 10 February 2021 ( )

Case C‑718/19

Ordre des barreaux francophones et germanophone,

Association pour le droit des Étrangers ASBL,

Coordination et Initiatives pour et avec les Réfugiés et Étrangers ASBL,

Ligue des Droits de l’Homme ASBL,

Vluchtelingenwerk Vlaanderen ASBL

v

Conseil des ministres

(Request for a preliminary ruling from the Cour constitutionnelle (Constitutional Court, Belgium))

(Reference for a preliminary ruling – Citizenship of the Union – Articles 20 and 21 TFEU – Directive 2004/38/EC – Right of citizens of the Union and their family members to move and reside freely within the territory of a Member State – Decision to terminate residence on grounds of public policy – Preventive measures to avoid any risk of absconding during the period allowed for leaving or during the extension of that period – National provisions identical or similar to those applicable to third-country nationals under Article 7(3) of Directive 2008/115/EC – Refusal of the Union citizen to comply with a decision terminating residence on grounds of public policy or public security – Maximum period of detention for the purpose of removal)





I. Introduction

1. By the two questions which it has referred for a preliminary ruling, the Belgian Cour constitutionnelle (Constitutional Court) is asking the Court of Justice to examine, in essence, whether Articles 20 and 21 TFEU and the provisions of Directive 2004/38/EC ( ) (‘the Residence Directive') preclude the application by a Member State, to citizens of the Union and their family members who have been the subject of an expulsion decision taken pursuant to that directive, of measures identical or similar to those applicable in national law to illegally staying third-country nationals, under Directive 2008/115/EC ( ) (‘the Return Directive').

2. In that regard it should be pointed out that the Court has held that the national legislature is not prevented from drawing inspiration from the provisions of another directive ‘where it appears expedient to do so and provided that no other provision of [EU] law prevents it from doing so'. ( ) Indeed, in the judgment in Petrea, ( ) the Court stated that the ‘Member States may draw inspiration from the provisions of [the Return Directive] to designate competent authorities and to define the procedure applicable to the adoption of a decision [adopted pursuant to the Residence Directive] ordering the return of an EU citizen …, if that is not precluded by any provisions of EU law'.

3. If that case-law suggests, in the present case, that a negative reply should be given to the questions referred by the national court, it is still necessary to ascertain whether it may also apply in connection with measures, such as those at issue in the main proceedings – namely, preventive measures adopted in order to avoid any risk of absconding following the adoption of an expulsion decision and detention measures intended to ensure that the expulsion measure is carried out – which, since, according to the referring court, they affect the very exercise of the right to move and reside freely within the territory of the Member States, may be regarded as being not purely procedural.

4. These questions will allow the Court to examine, for the first time, the compliance with EU law of national rules designed to ensure the enforcement of expulsion decisions adopted under the Residence Directive.

II. Legal framework

A. EU law

1. The Residence Directive

5. Recital 16 of the Residence Directive states that ‘as long as the beneficiaries of the right of residence do not become an unreasonable burden on the social assistance system of the host Member State they should not be expelled'.

6. Article 14 of that directive provides, in paragraphs 1 and 2, that Union citizens and their family members are to have the right of residence for up to three months, provided for in Article 6 of that directive, as long as they do not become an unreasonable burden on the social assistance system of the host Member State, and the right of residence for more than three months and rights to retain that residence, provided for in Articles 7, 12 and 13 of the directive, as long as they meet the conditions set out therein. By way of derogation from those provisions, Article 14(4) of the Residence Directive provides that an expulsion measure may in no case be adopted against Union citizens if they are workers or entered the territory of that Member State in order to seek employment.

7. Article 15 of the Residence Directive, entitled ‘Procedural safeguards', provides in paragraph 1 that ‘the procedures provided for by Articles 30 and 31 shall apply by analogy to all decisions restricting free movement of Union citizens and their family members on grounds other than public policy, public security or public health'.

8. As provided in Article 27(1) and (2) of that directive, ‘Member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health' and ‘measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. … The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted'.

9. Article 28 of the Residence Directive, entitled ‘Protection against expulsion', states in paragraph 1 that, ‘before taking an expulsion decision on grounds of public policy or public security, the host Member State shall take account of considerations such as how long the individual concerned has resided on its territory, his/her age, state of health, family and economic situation, social and cultural integration into the host Member State and the extent of his/her links with the country of origin'. Moreover, paragraph 2 of that article provides that ‘the host Member State may not take an expulsion decision against Union citizens or their family members, irrespective of nationality, who have the right of permanent residence on its territory, except on serious grounds of public policy or public security'.

10. Article 30(3) of that directive provides that ‘the notification [of any decision taken under Article 27(1) of the Residence Directive] shall specify …, where applicable, the time allowed for the person to leave the territory of the Member State. Save in duly substantiated cases of urgency, the time allowed to leave the territory shall be not less than one month from the date of notification'.

11. Article 33(2) of the directive provides that ‘if an expulsion order … is enforced more than two years after it was issued, the Member State shall check that the individual concerned is currently and genuinely a threat to public policy or public security and shall assess whether there has been any material change in the circumstances since the expulsion order was issued'.

2. The Return Directive

12. Recital 16 of the Return Directive states that ‘the use of detention for the purpose of removal should be limited and subject to the principle of proportionality with regard to the means used and objectives pursued. Detention is justified only to prepare the return or carry out the removal process and if the application of less coercive measures would not be sufficient'.

13. Article 1 of that directive provides that the directive sets out common standards and procedures to be applied for returning illegally staying third-country nationals, in accordance with fundamental rights as general principles of EU law as well as international law.

14. Article 2(3) of that directive provides that the directive is not to apply to persons enjoying the EU right of free movement.

15. Article 3(7) of the Return Directive defines ‘risk of absconding' as ‘the existence of reasons in an individual case which are based on objective criteria defined by law to believe that a third-country national who is the subject of return procedures may abscond'.

16. Under Article 6(1) of that directive, Member States are to issue a return decision to any third-country national staying illegally on their territory.

17. Article 7 of the directive, entitled ‘Voluntary departure', provides, in paragraph 3 thereof, that certain obligations aimed at avoiding the risk of absconding, such as regular reporting to the authorities, deposit of an adequate financial guarantee, submission of documents or the obligation to stay at a certain place may be imposed for the duration of the period for voluntary departure.

18. Under Chapter IV of the Return Directive, entitled ‘Detention for the purpose of removal', Article 15(1) provides that, ‘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'. Paragraphs 5 and 6 of that article provide, respectively, that ‘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', and that ‘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'.

B. Belgian law

19. The loi du 15 décembre 1980 sur l’accès au territoire, le séjour, l’établissement et l’éloignement des étrangers (Law of 15 December 1980 on the admission, residence, establishment and removal of foreign nationals) ( ) was amended by the Law of 24 February 2017 in order to enhance protection of public policy and national security ( ) (‘the Law of 24 February 2017'). This latter law partly transposes, inter alia, the Residence and Return Directives.

20. Articles 27 to 32 of the Law of 24 February 2017 inserted into the Law of 15 December 1980 Articles 44ter to 44octies thereof.

21. Article 44ter of the Law of 15 December 1980, as amended by the Law of 24 February 2017 (‘the Law of 15 December 1980'), provides:

‘The order to leave the territory issued to a Union citizen or to a member of his or her family shall specify the period within which he or she must leave the territory of the Kingdom. Save in duly substantiated cases of urgency, that period shall be not less than one month from notification of the decision.

The period referred to in the first subparagraph may be extended by the Minister or a person delegated by the Minister where: (1) voluntary return cannot take place within that period; or (2) an extension is justified by the particular circumstances of the situation of the person concerned. …'

22. Article 44quater of that law provides:

‘The Union citizen or the member of his or her family cannot be forcibly removed as long as the period referred to in Article 44ter has not expired.

In order to avoid any risk of absconding during the period referred to in Article 44ter, the Union citizen or the member of his or her family may be required to comply with preventive measures. The King is authorised to determine those measures by decree debated in the Conseil des ministres (Council of Ministers).'

23. Article 44quinquies of that law provides:

‘Paragraph 1. The Minister or a person delegated by the Minister shall take all the measures necessary to enforce the order to leave the territory where: (1) the Union citizen or the member of his or her family has not been given a time limit by which to leave the territory of the Kingdom; (2) the Union citizen or the member of his or her family has not left the territory of the Kingdom within the period granted to that person; (3) before the expiry of the period within which the Union citizen or family member is required to leave the territory of the Kingdom, he or she presents a risk of absconding, has failed to comply with the preventive measures imposed or represents a threat to public policy or national security.

Paragraph 2. Where the Union citizen or the member of his or her family objects to his or her removal or presents a risk of dangerousness when being removed, he or she shall be forcibly returned, with an escort if necessary. Coercive measures may then be used in relation to that person …

Paragraph 3. By decree debated in the Council of Ministers, the King shall designate the entity responsible for supervising forced returns and shall determine the arrangements for that supervision. That entity shall be independent of the removal authorities.'

24. Article 44sexies of the Law of 15 December 1980 is worded as follows:

‘Where justified by the circumstances of each case, the Minister or a person delegated by the Minister may temporarily postpone the removal and shall inform the person concerned.

In order to avoid any risk of absconding, the Union citizen or the member of his or her family may be required to comply with preventive measures. The King is authorised to determine those measures by decree debated in the Council of Ministers.

The Minister or a person delegated by the Minister may, in those situations, place the Union citizen or the member of his or her family under house arrest for the period necessary to carry out that measure.’

25. Under Article 44septies of that law:

‘Paragraph 1. Where required for reasons of public policy, national security or public health, and unless other less coercive measures can be applied effectively, Union citizens and members of their families may, in order to ensure that the removal measure is carried out, be held for the period strictly necessary to carry out the measure, which may not exceed two months.

The Minister or a person delegated by the Minister may nevertheless extend the period for which the person is held by two-month periods, where the procedures necessary for removal of the foreign national have been undertaken within seven working days of the Union citizen or the member of his or her family being held, have been pursued with all due diligence and there is still a possibility of effectively removing the person concerned within a reasonable time.

After a first extension, the decision to extend the period of holding may be taken only by the Minister.

After five months, the Union citizen or the member of his or her family must be released. Where required in order to safeguard public policy or national security, the period of holding may be extended by one month each time, although the total period of holding may not exceed eight months.

Paragraph 2. The Union citizen or the member of his or her family referred to in Paragraph 1 may appeal against the decision to hold him or her, in accordance with Article 71 et seq.'.

26. According to Article 44octies of that law:

‘The following persons may not be held within the meaning of Article 74/8, paragraph 2: (1) Union citizens who are unaccompanied minors; (2) members of the family of a Union citizen who are unaccompanied minors; (3) families of Union citizens where those families consist of at least one minor.'

27. Article 74/5, paragraph (3) of that law is worded as follows:

‘The period of holding in a specific place at the borders may not exceed two months. The Minister or a person delegated by the Minister may nevertheless extend the period for which the foreign national referred to in paragraph 1 is held by two-month periods: (1) if the foreign national is subject to an enforceable refoulement order; (2) and if the procedures necessary for removal of the foreign national have been undertaken within seven working days of the measure referred to in paragraph 1, have been pursued with all due diligence, and there is still a possibility of effectively removing the person concerned within a reasonable time.

After an extension, the decision referred to in the preceding paragraph may be taken only by the Minister. The total period of holding may never exceed five months.

Where required in order to safeguard public policy or national security, the period of holding of the foreign national may be extended by one month each time, after the period referred to in the preceding paragraph has expired, although the total period of holding may not, as a consequence, exceed eight months. …'

III. The dispute in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court

28. Two applications for annulment of the Law of 24 February 2017 were lodged before the Belgian Cour constitutionnelle (Constitutional Court), one by Ordre des barreaux francophones et germanophone ( ) and the other by four non-profit associations (ASBL) (‘the applicants in the main proceedings'). ( ) Those two cases were joined by the referring court.

29. In relation to those applications, the Cour constitutionnelle (Constitutional Court) raises the question as to whether certain provisions of the Law of 24 February 2017 concerning the removal of Union citizens and members of their families are compatible with EU law. More specifically, the referring court has doubts as to the compatibility with Articles 20 and 21 TFEU and with the Residence Directive of two provisions of that law which envisage the possibility of imposing on a Union citizen or a member of his or her family who has been issued with a removal order preventive measures during the period allowed for leaving Belgian territory, in order to avoid any risk of absconding, and a holding measure, namely detention (‘the detention measure'), after the expiry of that period, in order to ensure enforcement of the removal measure.

30. The referring court justifies its doubts as follows.

31. First, as regards the preventive measures, it points out that the Residence Directive contains no provision concerning measures which may be taken in respect of Union citizens or members of their families in order to avoid a risk of absconding where they have been the subject of an expulsion decision, and that, in the absence of harmonisation of EU law, these may be adopted by the national legislature which must, in principle, be free to do so by drawing inspiration from similar provisions applicable in national law to illegally staying third-country nationals, under the Return Directive. In that regard, the referring court states that the Court of Justice has already held, in the judgment in Petrea, ( ) that the Member States may draw inspiration from the provisions of the Return Directive to designate competent authorities and to define the procedure applicable to the adoption of a decision ordering the return of a Union citizen, if that is not precluded by any provision of EU law. The referring court queries whether that case-law applies to the present case, since it considers, in essence, that the preventive measures, which necessarily have an effect on the very exercise of the right to free movement and residence, cannot be classified as procedural provisions.

32. Secondly, as regards the detention measure, the referring court notes that the Law of 24 February 2017 prescribes the same treatment for Union citizens and their family members as for all other foreign nationals, awaiting removal to any State in the world, particularly with regard to the maximum detention period of eight months. The referring court questions, in essence, whether that maximum period is proportionate, in particular since it might be inferred from the Residence Directive that the detention period must be limited to the time strictly necessary for enforcing the removal decision. ( )

33. It is against this background that the Cour constitutionnelle (Constitutional Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Must EU law, in particular Articles 20 and 21 [TFEU] and [the Residence Directive], be interpreted as precluding national legislation according to which the provisions that apply to Union citizens and members of their families are similar to those which, in respect of third-country nationals, transpose Article 7(3) of [the Return Directive], that is to say, provisions according to which Union citizens and members of their families can be obliged to comply with preventive measures designed to prevent any risk of absconding during the period given to those persons in which to leave the territory following adoption of a decision to terminate residence on grounds of public policy or during an extension of that period?

(2) Must EU law, in particular Articles 20 and 21 [TFEU] and [the Residence Directive], be interpreted as precluding national legislation according to which a provision that applies to Union citizens and members of their families who have not complied with a decision terminating residence on grounds of public policy or public security is identical to that applied to third-country nationals in the same situation in relation to the maximum period of detention for the purposes of removal, that is to say, eight months?'

34. Written observations have been lodged by the applicants in the main proceedings, the Belgian, Danish, Spanish and Polish Governments and by the European Commission. With the exception of the Spanish and Polish Governments, those parties also presented oral argument at the hearing held on 16 November 2020.

IV. Analysis

A. Preliminary observations

35. At the heart of the referring court’s questions is the issue of whether EU law precludes a Member State from applying, in respect of Union citizens and members of their families who have been the subject of a decision to expel them from its territory under the Residence Directive, enforcement measures which are identical or similar to those applicable to the removal of illegally staying third-country nationals under the Return Directive, when these are likely to affect the very exercise of the right to move and reside freely within the territory of the Member States.

36. I think it is useful, before beginning my analysis, to provide an overview of the applicable regulatory framework and of the relevant case-law (Section 1) and to clarify the scope of the questions referred for a preliminary ruling, as raised (Section 2).

1. The applicable regulatory framework and the relevant case-law

37. First of all, it should be pointed out that citizenship of the Union – as introduced by the Maastricht Treaty ( ) – confers on every citizen of the Union a primary and individual right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and to the measures adopted to give them effect. That right is now conferred on the citizens of the Union by Article 21(1) TFEU as reaffirmed in Article 45 of the Charter of Fundamental Rights of the European Union.

38. The Residence Directive, which governs, inter alia, the conditions for the exercise of the right of Union citizens and their family members to move and reside freely within the territory of the Member States, aims to facilitate and strengthen the exercise of that right. ( ) That directive contains not only rules governing the acquisition of the various rights of residence for which it provides, but also a series of provisions designed to govern the situation resulting from loss of the benefit of one of those rights.

39. In that regard, the Residence Directive envisages two possible situations in which Member States may adopt decisions limiting the free movement and residence of Union citizens and their family members, and in particular ‘expulsion decisions', specifically where such decisions are taken ‘on grounds of public policy, public security or public health' (Article 27(1) of that directive) or where those decisions are taken ‘on grounds other than public policy, public security or public health' (Article 15(1) of the directive). ( )

40. In addition to the situations in which expulsion decisions may be taken against Union citizens or their family members, the Residence Directive lays down a number of rules and procedural safeguards to be observed, namely in particular those set out in Articles 15, 30, 31 and 33 thereof. Those rules include that laid down in Article 30(3) of that directive, according to which the time allowed for the person to leave the territory of the Member State following an expulsion decision, save in cases of urgency, may not be less than one month from the date of notification of that decision.

41. However, with the exception of those provisions, the Residence Directive does not provide any specific regime for the implementation or enforcement of expulsion decisions nor, a fortiori, provisions concerning preventive measures adopted to avoid any risk of absconding during the period for voluntary departure or provisions relating to detention for the purpose of such a removal. Similarly, that directive contains no provision expressly precluding such measures being taken by the Member States.

42. In the absence of EU rules on the matter, it is for the national legal order of each Member State to establish the rules for enforcing expulsion decisions, in accordance with the principle of procedural autonomy, on condition that those rules are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not make it impossible in practice or excessively difficult to exercise the rights conferred by the EU legal order (principle of effectiveness). ( )

43. In connection with the exercise of that national competence to determine the rules for enforcing expulsion decisions, it should be pointed out that the Court has already held that EU law does not, in principle, preclude the use of rules concerning third-country nationals for the purpose of establishing the system applicable to Union citizens, despite the fact that the Residence and Return Directives do not necessarily have the same object. ( ) Indeed, in the judgment in Petrea, the Court held that ‘the Member States may draw inspiration from the provisions of [the Return Directive, which concerns illegally staying third-country nationals,] to designate competent authorities and to define the procedure applicable to the adoption of a [decision to expel a Union citizen], if that is not precluded by any provisions of EU law'. ( )

44. It follows that, in the present case, since the Residence Directive contains no rules relating to the enforcement of expulsion decisions, the Member States must, in principle, be allowed to draw inspiration from the provisions of the Return Directive, which was adopted subsequently and contains relevant provisions in that regard.

45. Indeed, as regards, first, preventive measures, Article 7(3) of the Return Directive provides that ‘certain obligations aimed at avoiding the risk of absconding, such as regular reporting to the authorities, deposit of an adequate financial guarantee, submission of documents or the obligation to stay at a certain place may be imposed for the duration of the period for voluntary departure'. ( ) Similarly, as regards, secondly, the possibility of keeping a Union citizen or a member of his or her family in detention in order to ensure enforcement of an expulsion decision, the Return Directive specifically regulates detention with a view to removal, in Chapter IV, entitled ‘Detention for the purpose of removal'.

46. Consequently, there is nothing, in principle, to prevent the Member States from being able to apply, mutatis mutandis, the provisions laid down for decisions to return third-party nationals to Union citizens and their family members who have been the subject of an expulsion decision.

47. That being said, in order for provisions applying to third-country nationals actually to be transposable to Union citizens and to their family members, in accordance with the judgment in Petrea, no provision of EU law must preclude it. In that regard, it should be pointed out that, under Article 21 TFEU, the right to reside within the territory of the Member States is conferred on every citizen of the Union ‘subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect'. ( ) Consequently, it is also necessary to ascertain whether the preventive and detention measures may constitute, on their own, measures likely to limit the right to free movement and residence of those citizens. On that basis, while EU law in no way precludes the Member States from establishing their own rules on enforcement of removal decisions, such rules must nevertheless not impair the effectiveness of EU law. ( )

48. It is in the light of these considerations that it is necessary to examine whether, and under what conditions, the principle expressed in the judgment in Petrea may be applied to each of the measures at issue in the main proceedings.

2. The scope of the questions referred for a preliminary ruling

49. In order to remove any uncertainty about the meaning and scope of the two questions referred for a preliminary ruling, it seems to me to be necessary to provide the following clarification.

50. In the first place, I consider that it is necessary to clarify a point of terminology with regard to the use of the words ‘decision to terminate residence'. It should be noted that both of the questions referred for a preliminary ruling, as formulated by the referring court, envisage the adoption, respectively, of ‘preventive measures' or of ‘detention', where Union citizens or members of their families have been the subject of a ‘decision to terminate residence'. Now, it must be made clear that while a ‘decision to terminate residence' involves, in principle, the obligation to leave the territory, it does not necessarily involve the adoption of a removal measure, namely an ‘order to leave the territory', within the meaning of the first paragraph of Article 7 of the Law of 15 December 1980. ( ) Since both of the questions referred for a preliminary ruling envisage situations involving the adoption of a removal measure, they should, in my view, be understood as referring to Union citizens or their family members who have been the subject not only of a decision to terminate residence but also of an expulsion decision.

51. In the second place, it should be noted that the referring court limits the first question to the possibility of applying to Union citizens ‘preventive measures' similar to those applicable to third-country nationals where the removal decision is taken ‘on grounds of public policy'. That limitation on the scope of the question is not expressly indicated in the wording of the national legislation, and in particular Articles 44quater, 44quinquies and 44sexies of the Law of 15 December 1980. Indeed, as the Belgian Government confirmed in its observations, such ‘preventive measures' may be taken every time an expulsion measure is adopted against a Union citizen or members of his or her family and they present a risk of absconding, ( ) which means situations which do not constitute a threat to public policy, namely, on grounds of ‘public security or public health', within the meaning of Article 27(1) of the Residence Directive, and on ‘grounds other [than those provided for by Article 27(1) of that directive]', within the meaning of Article 15(1) of the directive.

52. It is true that, according to settled case-law, in the context of the cooperation between the Court and the national courts provided for in Article 267 TFEU, it is solely for the national court before which the dispute has been brought and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. ( ) Consequently, when the questions submitted are confined to expulsion decisions taken on grounds of public policy, the Court is, in principle, bound to give a ruling only in that regard.

53. However, in the present case, first, it is not apparent from the request for a preliminary ruling why those preventive measures must be analysed only in the light of expulsion decisions taken on grounds of public policy. Secondly, there is just as likely to be a ‘risk of absconding' in connection with expulsion decisions taken on grounds of public policy as with those adopted on grounds of ‘public security or public health', under Article 27(1) of the Residence Directive, or even on grounds ‘other than public policy, public security or public health' within the meaning of Article 15(1) of that directive. Consequently, in order to give a comprehensive answer to the referring court, I suggest that the scope of the first question be extended to include all expulsion decisions taken under the Residence Directive.

54. In the third place, I note that the referring court limits the second question referred for a preliminary ruling to the possibility of providing for a maximum period of detention for the purpose of removal identical to that applicable to third-country nationals if the removal decision is taken ‘on grounds of public policy or public security'. However, Article 44septies of the Law of 15 December 1980 provides for the possibility of holding a person ‘where required for reasons of public policy, national security or public health'. ( ) The scope of this question could therefore conceivably be extended to include grounds of public health. However, in the present case, I consider that the limitation of the referring court is justified in so far as the second question referred focuses on the provision of that article which allows the detention period to be extended up to a period of eight months, only ‘where required in order to safeguard public policy or national security'.

55. In the fourth and last place, it should be pointed out that the Belgian Government suggests reformulating the second question, so as to separate the detention measure from the fact that the person concerned has not left the territory within the period given. The Belgian Government explains that, under Belgian law, no foreign national – whether a Union citizen, a member of his or her family or a third-country national – can be placed in detention solely on the grounds that he or she has not complied with a decision to terminate residence on grounds of public policy or public security. Detention is only justified to prepare for return and to carry out the removal process where enforcement of the removal decision risks being compromised by the behaviour of the person concerned.

56. In that regard, I note that the analysis of the Belgian Government does indeed seem to be corroborated by the wording of Article 44septies of the Law of 15 December 1980. However, in my view, the second question, as posed by the referring court, is compatible with the Belgian Government’s position since, by not complying with a removal decision within the time limit laid down, the person concerned will have behaved in such a way as to compromise the enforcement of that decision and thus to justify deprivation of his or her liberty, in the form of detention, for the purpose of carrying out a forced removal. I therefore suggest that the second question should not be reformulated in the way proposed by the Belgian Government.

57. It is in the light of these points that I propose to examine the two questions referred for a preliminary ruling.

B. The first question

58. By its first question, which I suggest should be reformulated so as to take into account the considerations set out in point 53 of my Opinion, the referring court asks, in essence, whether Articles 20 and 21 TFEU and the Residence Directive are to be interpreted as precluding national legislation under which preventive measures that apply to Union citizens and members of their families who have been the subject of an expulsion decision under the Residence Directive are similar to those which, in respect of third-country nationals, transpose Article 7(3) of the Return Directive, in order to avoid any risk of absconding during the period allowed for those persons to leave the territory of the Member State concerned.

59. The applicants in the main proceedings consider that this question should be answered in the affirmative, and that therefore such preventive measures infringe Articles 20 and 21 TFEU and the Residence Directive. On the other hand, the Belgian, Danish, Spanish and Polish Governments suggest, with fundamentally consistent reasoning, that this question should be answered in the negative, on the basis mainly of an application by analogy of the judgment in Petrea. The Commission, for its part, states that it must be possible for such preventive measures to be applied, even before expiry of the time limit for voluntary departure laid down in Article 30(3) of the Residence Directive, provided that those measures are based on objective considerations and are proportionate.

1. The identification and legal assessment of the preventive measures

60. Article 44quater of the Law of 15 December 1980 provides for the possibility of imposing ‘preventive measures' on the Union citizen or family member who has been issued with a removal decision, before the expiry of the period within which he or she must leave the territory, in order to ‘avoid any risk of absconding'. Such measures may also be imposed in the event of a temporary postponement of the removal, under Article 44sexies of that law. In the event of non-compliance with the preventive measures, Article 44quinquies of that law provides that ‘all the measures necessary' to enforce the order to leave the territory may be adopted, even before expiry of the period for voluntary departure, if the person concerned presents a risk of absconding.

61. In that regard, it is important to note that those ‘preventive measures’ are not defined by the national legislation, with the exception of the possibility of house arrest if the removal is temporarily postponed within the meaning of Article 44sexies of the Law of 15 December 1980. For the rest, that law provides that ‘ the King is authorised to determine those measures by decree debated in the Council of Ministers' (Articles 44quater and 44sexies) without specifying the content of those measures. The Belgian Government stated in its observations that, to date, no Royal decree has determined those measures. ( )

62. However, it should be pointed out that, according to the explanatory statement relating to the provisions at issue, these ‘are broadly inspired' by the provisions of the Return Directive. ( ) Therefore, by drawing inspiration from the ‘similar' provisions applicable to third-country nationals laid down by Article 7(3) of that directive, such measures might consist, inter alia, of ‘obligations … such as regular reporting to the authorities, deposit of an adequate financial guarantee, submission of documents or the obligation to stay at a certain place'. Therefore, our analysis should be based on the premiss that such measures may actually constitute ‘preventive measures’, within the meaning of the national provisions at issue in the main proceedings.

63. As regards the legal assessment of those preventive measures, two diverging approaches are possible.

64. On the one hand, the Polish Government, with which the Belgian and Danish Governments agree, submits that those preventive measures constitute, in essence, merely administrative measures ancillary to an existing removal decision, which have the sole aim of ensuring its enforcement and which cannot take place if there is no such decision. Those measures therefore cannot further limit freedom of movement and residence, but are designed only to ensure the enforcement of a removal decision which is itself undeniably a measure restricting free movement, within the meaning of Article 15(1) or of Article 27(1) of the Residence Directive. ( )

65. If this first approach were to be taken, the ‘preventive measures' could be assessed as procedural measures falling entirely within the procedural autonomy of the Member States, subject to respect for the principles of equivalence and effectiveness.

66. On the other hand, the referring court and the Commission point out that those preventive measures, despite their ancillary nature, necessarily have an effect on the rights and freedoms of the Union citizen or family member concerned since those measures have the specific aim of preventing him or her from absconding, which might prevent him or her, depending on the circumstances, from going to another Member State.

67. If the second approach were to be taken, the ‘preventive measures' would be assessed not as mere procedural measures, but as measures imposing a new limitation on freedom of movement, as referred to in Article 21 TFEU. According to settled case-law, it would therefore be necessary to verify whether those preventive measures are justified in that they are based on objective considerations and are proportionate to the legitimate objective of the national provisions. ( )

2. The existence of a restriction

68. For the following reasons, I suggest taking the second approach, according to which the ‘preventive measures’ should not be regarded as mere procedural provisions but as measures capable of constituting restrictions on freedom of movement, as referred to in Article 21 TFEU.

69. In the first place, I think it is important to emphasise, at the outset, that the fact that a Union citizen or a member of his or her family has been the subject of an expulsion decision does not mean that that person ceases to benefit from the right to free movement within the territory of the Union. It is true that that person must leave the territory of the host Member State which has issued the expulsion decision, but he or she continues to benefit from the fundamental right to free movement and residence within the remaining territory of the Union. Consequently, it is necessary to reject the argument that the ‘preventive measures', being ancillary to expulsion decisions, cannot in themselves affect the right to free movement of the person concerned by the expulsion decision. Moreover, that finding cannot be invalidated by the fact that the preventive measures are designed to facilitate the removal of the person concerned from the host Member State and not to limit his or her right to move and reside in other Member States.

70. In the second place, and in the light of the foregoing, despite the fact that the content of the ‘preventive measures' is not specified in the Law of 15 December 1980, it seems to me that the possibility that those measures may directly affect the freedom to move and reside conferred by the Residence Directive cannot be excluded. That finding is clear in the case of a preventive measure taken in the form of ‘house arrest’, which is by definition a restriction on the freedom to move not only within the territory of the Member State concerned but also within the territory of the Union. Similarly, measures such as the obligation of regular reporting to the authorities, deposit of an adequate financial guarantee, submission of documents or the obligation to stay at a certain place might also affect the ability of the person concerned not only to move, or even to reside, in another Member State, but also to prepare his or her voluntary departure. More specifically, such preventive measures might affect the actual enjoyment of the right to be granted a period of one month, as provided for in Article 30(3) of the Residence Directive, in order, inter alia, to prepare for voluntary departure to another Member State, affecting, in fine, the right to free movement. ( ) That would be the case in particular if the preventive measures in question were imposed from the first few days following notification of the expulsion decision. I note that the wording of Article 44ter of the Law of 15 December 1980 does not seem to exclude the adoption of preventive measures before expiry of the one-month period. ( )

71. In the third place, it is apparent from that analysis that the ‘preventive measures' are not designed simply to organise procedures linked to the enforcement of a removal decision. Such a decision does not, in principle, require the prior imposition of preventive measures. In that respect, those measures are, it is true, administrative measures, but they go far beyond purely organisational or procedural measures as referred to in the judgment in Petrea. Therefore, it does not seem to me to be appropriate to treat them merely as rules of procedure and to assess them in the light of their compliance with the principles of equivalence and effectiveness. ( )

72. On the basis of these considerations, it must be stated that, despite the fact that the principle expressed in the judgment in Petrea recognises that the Member States may draw inspiration from the Return Directive for the purpose of adopting measures to enforce expulsion decisions taken under the Residence Directive, that principle cannot be fully applied in the present case, because, unlike purely organisational and procedural measures, those preventive measures may affect the very exercise of the rights granted by the Residence Directive and, in particular, restrict freedom of movement and residence. In order to assess whether those measures are consistent with EU law, it is therefore necessary to ascertain whether they may be justified.

3. The existence of justification

73. According to settled case-law, legislation which restricts the freedom of movement of persons can be justified in the light of EU law only if it is based on objective considerations of public interest, irrespective of the nationality of the persons concerned, and is proportionate to a legitimate objective pursued by the provisions of national law. ( )

74. It is in the light of these requirements that it is necessary to examine whether the preventive measures, in spite of their restrictive effect on freedom of movement and residence, may be justified.

75. In the first place, as regards objective considerations, the Belgian Government argues that the preventive measures at issue are justified by the Belgian legislature’s intention to avoid a ‘risk of absconding' in the case of a Union citizen or a member of his or her family who has been the subject of a removal decision. Indeed, that objective is clear from the very wording of Articles 44quater and 44quinquies of the Law of 15 December 1980 and is consistent with the explanatory memorandum on that law. ( )

76. Such justification must be regarded, in my view, as legitimate and may justify a measure restricting a fundamental freedom, such as that laid down in Article 21 TFEU. ( ) The preventive measures at issue seek to ensure the enforcement of an expulsion decision taken under the Residence Directive, where the competent authorities consider, inter alia, that there is a risk that the person concerned will not comply with it voluntarily within the period allowed. In fine, those measures are therefore designed to ensure the effectiveness of the Residence Directive and not jeopardise the removal of Union citizens or members of their families, where this is required under that directive. Moreover, and more generally, the Member States have a legitimate interest in establishing a regime for enforcing removal decisions, including rules relating to the risk of absconding, for reasons of transparency, legal certainty and foreseeability.

77. In the second place, as regards the proportionality of those measures, it is apparent from the relevant case-law that a measure is proportionate if, while appropriate for securing the attainment of the objective pursued, it does not go beyond what is necessary to attain that objective. ( )

78. The assessment of the proportionality of the preventive measures calls for an analysis and balancing of various matters of law and of fact specific to the Member State concerned which the referring court is better able than the Court to carry out, inter alia, since the actual content of those measures has not yet been determined (see point 61 of my Opinion). Moreover, it is for the referring court to take account of the institutional context and the way in which the competent authorities will implement those measures. In that assessment of proportionality, the following matters seem to me to be relevant.

79. First, I consider that a systematic implementation of those preventive measures on the basis of factors not directly linked to the risk of absconding, such as the ground for removal, would constitute a restriction on the right of movement and residence going beyond what is necessary to attain the objective of limiting the risk of absconding. The ground for removal, even where it is a question of a threat to public policy or public security, cannot, on its own, justify a preventive measure. However, it seems clear to me that the conduct of the persons concerned before the adoption of the expulsion decision will be a key element in determining the risk of absconding, which will have to be taken into account by the competent authorities. For example, in order to assess the proportionality of the measure, it will certainly be necessary to take account of the nature of the threat to public policy justifying expulsion. ( )

80. Secondly, I consider that implementation proportionate to the objectives sought must be characterised by use of preventive measures only where there is a real risk of absconding. Accordingly, the competent authorities will have to implement those measures exceptionally and on the basis of an individual assessment of the risk that the person concerned will abscond. Therefore, in order for the preventive measures to be regarded as proportionate, each measure must be chosen according to the level of risk of absconding. For example, the obligation to ‘stay at a certain place', which clearly restricts the freedom to move and reside freely, would be justified only if the risk of absconding is particularly high. Therefore, the competent authorities will have to verify, on a case-by-case basis, whether, among the preventive measures, there are measures less intrusive of the exercise of the rights conferred by Article 21 TFEU which may achieve the objective of ensuring effective enforcement of an expulsion decision. Moreover, as the Commission points out, a measure which purely and simply prevents the Union citizen or his or her family member from complying with the expulsion decision during the period for voluntary departure would be both disproportionate and counterproductive.

81. In the light of all the foregoing considerations, I suggest that the Court’s reply to the first question referred for a preliminary ruling should be that Articles 20 and 21 TFEU and the Residence Directive must be interpreted as not precluding, in principle, the Member States from applying national legislation which, in respect of Union citizens and members of their families who have been the subject of an expulsion decision under the Residence Directive, provides for ‘preventive measures' similar to those which transpose, with regard to third-country nationals, Article 7(3) of the Return Directive, in order to avoid any risk of absconding during the period granted for leaving the territory of the Member State concerned, provided that they are based on objective considerations and are proportionate.

C. The second question

82. By its second question, which I suggest should be reformulated in order to take into account the considerations set out in point 50 of my Opinion, the referring court asks, in essence, whether Articles 20 and 21 TFEU and the Residence Directive must be interpreted as precluding national legislation which applies, to Union citizens and members of their families who have been the subject of an expulsion decision on grounds of public policy or public security and have not left the territory of the Member State concerned within the period granted by the decision, a detention measure of a maximum duration of eight months, identical to that laid down for illegally staying third-party nationals.

83. The applicants in the main proceedings suggest that this question be answered in the affirmative, stating, in essence, that such a measure would risk leading to disproportionate detentions, exceeding the duration strictly necessary for removal, without any possible effective monitoring of the length of detention. The Belgian Government, whose views are shared in essence by the Danish and Spanish Governments, maintains that this question should be answered in the negative, although it should be reformulated (see point 55 of my Opinion). As for the Commission, it too suggests that the question should be answered in the negative, maintaining that the Member States must be able to provide for a maximum detention period identical to that which is provided for illegally staying third-country nationals, provided that that period is, in individual cases, as short as possible and does not exceed the time strictly necessary for enforcement of the removal measure.

1. The identification and legal assessment of the detention measure

84. Article 44septies of the Law of 15 December 1980 provides for the possibility of ‘holding', that is to say detaining, Union citizens and members of their families in order to ensure that the removal measure is carried out, unless other less coercive measures can be applied effectively. That detention may last for the period strictly necessary to carry out the removal measure and must not, in principle, exceed two months. That provision also provides for possible extensions of the period of detention, which are identical to those provided for third-country nationals in Article 74/5, paragraph 3, of the Law of 15 December 1980, that is, a maximum of five months, and up to eight months in the case of grounds of public policy or national security. It is this last maximum extension of eight months which concerns the referring court and which will be the subject of this analysis.

85. First of all, I should point out that, as has been noted in points 41 to 46 of this Opinion, the Residence Directive does not provide any specific regime for the implementation or enforcement of expulsion decisions nor, a fortiori, provisions relating to detention for the purpose of such a removal. Similarly, that directive contains no provision expressly precluding such measures being taken by the Member States. In the absence of EU rules on the matter, it is therefore for the national legal order of each Member State to establish the rules for enforcing expulsion decisions, drawing inspiration, if appropriate, from the provisions of the Return Directive, which concerns third-country nationals.

86. The possibility of detention for the purpose of removal is provided for in Article 15 of the Return Directive, ‘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'. With regard to the length of that detention, paragraph 1 of that article provides that it must be ‘for as short a period as possible and only maintained as long as removal arrangements are in progress', and paragraph 5 adds that ‘each Member State shall set a limited period of detention, which may not exceed six months'. Furthermore, Article 15(6) provides for a possible extension for a period not exceeding a further 12 months if the removal operation lasts longer owing to a lack of cooperation by the third-country national concerned or delays in obtaining the necessary documentation from third countries.

87. In order for those provisions of the Return Directive to be transposable to Union citizens, they must not in themselves constitute, in respect of those citizens, restrictions on the freedom of movement and residence of the persons concerned, unless they are justified and do not undermine the effectiveness of EU law.

2. The existence of a restriction

88. In that regard, I consider that, following the same reasoning applied to the ‘preventive measures' (see points 68 to 72 of this Opinion), detention cannot be merely a procedural measure, because it may represent an obstacle to the Union citizen’s freedom of movement and residence. Such ‘detention' constitutes ipso facto a restriction on freedom of movement owing to the fact that it does not allow the person concerned to move freely, including in the Member State which has issued the removal decision. ( )

3. The existence of justification

89. Such a restriction may, however, be justified, if it is based on objective considerations and is proportionate to a legitimate objective pursued by the provisions of national law (see point 73 of my Opinion).

90. As regards, in the first place, objective considerations, it should be noted that, contrary to the provisions of Article 15 of the Return Directive, the wording of Article 44septies of the Law of 15 December 1980 contains no indication as to the grounds which may justify recourse to a detention measure, other than that such detention must be ‘required' for reasons of public policy, national security or public health and be designed ‘to ensure that the removal measure is carried out'. In that regard, the Belgian Government explained, in its observations, that recourse to detention can be justified only in order to prepare the return and to carry out the removal process, and that it takes place only where enforcement of the removal decision risks being compromised by the conduct of the person concerned. Subject to confirmation of that interpretation by the referring court, it must be concluded that such a measure which seeks principally to ensure enforcement of a removal decision and, in fine, the effectiveness of certain provisions of the Residence Directive seems to me to be legitimate and to justify a restriction on freedom of movement.

91. In the second place, I consider that, while Member States are also justified in wishing to lay down a maximum period of detention, it is for the referring court to assess the proportionality of that period, taking into account, as appropriate, administrative experience in relation to the implementation of Article 74/5, paragraph 3, of the Law of 15 December 1980, and the decision-making practice relating to the time normally required to enforce a measure to remove a Union citizen to another Member State. This will make it possible to assess whether eight months disproportionately exceeds the time strictly necessary for enforcing the removal measure. The following factors may be relevant in that regard.

92. First, recourse to the maximum period of detention must be assessed not in isolation, but in the more general context of the application of Article 44septies of the Law of 15 December 1980. On the basis of that contextual analysis, I consider that recourse to a maximum extension of eight months would be justified only exceptionally. First of all, it is clearly stated in Article 44septies that a detention measure will be adopted ‘unless other less coercive measures can be applied effectively'. Also, the extension of such detention by two-month periods is provided for only where the procedures necessary for removal have been undertaken within seven working days of the person being held, which should normally expedite them. Moreover, following that first extension, a subsequent extension decision may be taken only by the Minister, for a maximum period of detention of five months, at the end of which the person concerned must be released. Finally, it is only where required in order to safeguard public policy or national security that the period of detention will be extended by one month each time, for a total period of eight months.

93. Secondly, I would point out that, at the hearing, the Belgian Government explained that that maximum period of eight months was chosen because the Residence Directive does not preclude an expulsion decision being taken in respect of third-country nationals, where they are family members of a Union citizen. That is why the maximum period was based on the maximum period applicable to third-country nationals under Article 74/5, paragraph 3, of the Law of 15 December 1980.

94. However, except in very specific circumstances, and given that Article 44septies of the Law of 15 December 1980 is designed to prepare the return and to carry out the removal process, the time necessary for removal may generally be much shorter in the case of Union citizens and members of their families holding the nationality of a Member State, since the return to the State of origin requires not the cooperation of a third country but that of a Member State. I consider that a maximum period identical to that laid down for illegally staying third-country nationals fails to take into account certain factors which distinguish the situation of Union citizens from that of third-country nationals, namely, on the one hand, the system of cooperation which exists between the Member States of the Union, which does not necessarily exist in the case of third countries, and, on the other, the particular circumstance that, in the case of Union citizens, their identity is usually known and there is no doubt as to their nationality (this last criterion often justifying a longer period in the case of third-country nationals, in order to verify their nationality).

95. In the light of all the foregoing considerations, the reply to the second question should be that Articles 20 and 21 TFEU and the Residence Directive must be interpreted as not precluding, in principle, the Member States from establishing a maximum period of detention identical to that laid down for illegally staying third-country nationals, provided that the period of detention is, in individual cases, as short as possible and does not exceed the time strictly necessary for enforcing the removal measure, which will normally be less than that necessary for enforcing a removal measure in respect of illegally staying third-country nationals.

V. Conclusion

96. In the light of the foregoing, I propose that the Court reply to the questions referred for a preliminary ruling by the Cour constitutionnelle (Constitutional Court, Belgium) as follows:

1) Articles 20 and 21 TFUE and Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, as amended by Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011, must be interpreted as not precluding, in principle, the Member States from applying, in respect of a Union citizen or a member of his or her family who has been the subject of an expulsion decision under Directive 2004/38, before expiry of the period for voluntary departure laid down in Article 30(3) of that directive, preventive measures designed to avoid a risk of absconding, such as those referred to in Article 7(3) 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, provided that they are based on objective considerations and are proportionate.

2) Articles 20 and 21 TFEU and Directive 2004/38, as amended by Regulation No 492/2011, must be interpreted as not precluding, in principle, the Member States from establishing, in respect of a Union citizen or a member of his or her family who has been the subject of an expulsion decision under that directive, after expiry of the period for voluntary departure laid down in Article 30(3) of that directive, a detention measure designed to enforce that expulsion decision of a maximum period identical to that laid down for illegally staying third-country nationals, provided that that period is, in individual cases, as short as possible and does not exceed the time strictly necessary for enforcing the removal measure, which will normally be less than that necessary for enforcing a removal measure in respect of illegally staying third-country nationals.