Order of the Court (Third Chamber) of 21 March 2013 — Mbaye

(Case C-522/11)

‛Article 99 of the Rules of Procedure — Area of freedom, security and justice — Directive 2008/115/EC — Common standards and procedures for returning illegally staying third-country nationals — National legislation penalising illegal residence by criminal sanctions’

1. Border controls, asylum and immigration — Immigration policy — Return of illegally staying third-country nationals — Directive 2008/115 — Scope ratione personae — Third-country nationals prosecuted for or convicted of the offence of illegal residence provided for in national legislation — Inclusion (European Parliament and Council Directive 2008/115, Art. 2(2)(b)) (see paras 21, 22, operative part 1)

2. Border controls, asylum and immigration — Immigration policy — Return of illegally staying third-country nationals — Third-country national subject to a return procedure within the meaning of Directive 2008/115 — National legislation punishing an illegal stay with a fine which may be replaced by an expulsion order — Whether admissible — Conditions (European Parliament and Council Directive 2008/115, Art. 7(4)) (see paras 24-33, operative part 2)

Re:

Request for a preliminary ruling — Ufficio del Giudice di Pace Lecce — Interpretation of Articles 2(2)(b), 6, 7 and 8 of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ 2008 L 348, p. 98) — National legislation providing for a fine of between EUR 5 000 and EUR 10 000 for a foreign national who has illegally entered or illegally stayed on the national territory — Whether a criminal offence of illegal residence is permissible — Whether immediate expulsion for a period of at least five years, as an alternative to a fine, is permissible.

Operative part:

1. Third-country nationals prosecuted for or convicted of the offence of illegal residence provided for in the legislation of a Member State cannot, on account solely of that offence of illegal residence, be excluded from the scope 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, pursuant to Article 2(2)(b) of that directive.

2. Directive 2008/115 does not preclude legislation of a Member State, such as that at issue in the main proceedings, penalising the illegal residence of third-country nationals by a fine which may be replaced by expulsion. However, it is only possible to have recourse to that option to replace the fine where the situation of the person concerned corresponds to one of those referred to in Article 7(4) of that directive.

Order of the Court (Third Chamber) of 21 March 2013 — Mbaye

(Case C-522/11)

‛Article 99 of the Rules of Procedure — Area of freedom, security and justice — Directive 2008/115/EC — Common standards and procedures for returning illegally staying third-country nationals — National legislation penalising illegal residence by criminal sanctions’

1. Border controls, asylum and immigration — Immigration policy — Return of illegally staying third-country nationals — Directive 2008/115 — Scope ratione personae — Third-country nationals prosecuted for or convicted of the offence of illegal residence provided for in national legislation — Inclusion (European Parliament and Council Directive 2008/115, Art. 2(2)(b)) (see paras 21, 22, operative part 1)

2. Border controls, asylum and immigration — Immigration policy — Return of illegally staying third-country nationals — Third-country national subject to a return procedure within the meaning of Directive 2008/115 — National legislation punishing an illegal stay with a fine which may be replaced by an expulsion order — Whether admissible — Conditions (European Parliament and Council Directive 2008/115, Art. 7(4)) (see paras 24-33, operative part 2)

Re:

Request for a preliminary ruling — Ufficio del Giudice di Pace Lecce — Interpretation of Articles 2(2)(b), 6, 7 and 8 of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ 2008 L 348, p. 98) — National legislation providing for a fine of between EUR 5 000 and EUR 10 000 for a foreign national who has illegally entered or illegally stayed on the national territory — Whether a criminal offence of illegal residence is permissible — Whether immediate expulsion for a period of at least five years, as an alternative to a fine, is permissible.

Operative part:

1. Third-country nationals prosecuted for or convicted of the offence of illegal residence provided for in the legislation of a Member State cannot, on account solely of that offence of illegal residence, be excluded from the scope 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, pursuant to Article 2(2)(b) of that directive.