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 and the protection of legitimate expectations do not preclude a Member State from, first, withdrawing a registration certificate wrongly issued to an EU citizen who was still subject to an exclusion order, and, secondly, adopting a removal order against him based on the sole finding that the exclusion order was still valid.

As regards, first of all, the withdrawal of the registration certificate, it has been held by the Court that the right of nationals of a Member State to enter the territory of another Member State and to reside there for the purposes intended by the EC Treaty is a right conferred directly by the Treaty, or, as the case may be, by the provisions adopted for its implementation. Therefore, the grant of a residence permit to a national of a Member State is to be regarded, not as a measure giving rise to rights, but as a measure by a Member State serving to prove the individual position of a national of another Member State with regard to provisions of European Union law (judgment of 21 July 2011, Dias, C‑325/09, EU:C:2011:498, paragraph 48 and the case-law cited).

Consequently, just as such a declaratory character means that a citizen’s residence may not be regarded as illegal, within the meaning of European Union law, solely on the ground that he does not hold a residence permit, it precludes a Union citizen’s residence from being regarded as legal, within the meaning of European Union law, solely on the ground that such a permit was validly issued to him (judgment of 21 July 2011, Dias, C‑325/09, EU:C:2011:498, paragraph 54).

As the Advocate General pointed out in point 42 of his Opinion, the same is true a fortiori in the context of the TFEU, as is moreover stated in recital 11 of Directive 2004/38.

Such a declaratory character attaches, therefore, also to the registration certificate provided for in Article 8(2) of Directive 2004/38, with the result that the issue of that document cannot, in itself, give rise to a legitimate expectation on the part of the person concerned in his right to stay on the territory of the Member State concerned.

As regards the modalities for adopting a decision imposing return in circumstances such as those in the main proceedings, it should be recalled that Article 27(1) of Directive 2004/38 provides, subject to the provisions of Chapter VI thereof, for the possibility for Member States to restrict the freedom of movement and residence of a Union citizen or a member of his family, irrespective of nationality, on grounds of public policy, public security or public health.

Article 28(1) of that directive requires the competent authorities to 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, before taking an expulsion decision on grounds of public policy or public security.

Those provisions, which cover all expulsion decisions, apply therefore in particular to exclusion decisions which are expressly referred to by Article 32 of Directive 2004/38.

Although Directive 2004/38 does not contain specific provisions relating to situations in which a person who is subject to such an exclusion re-enters the Member State concerned in infringement thereof, it results from the entirety of the provisions of that directive and more particularly from those concerning the possible lifting of such an exclusion that the competent authorities possess the power to ensure compliance therewith.

It should be noted, in that regard, that Directive 2004/38 lays down the conditions under which the competent authorities may lift that prohibition due to changed circumstances.

The first subparagraph of Article 32(1) of Directive 2004/38 states that persons subject to a decision ordering their exclusion may submit an application for lifting of the exclusion order after a reasonable period, depending on the circumstances, and in any event after three years from enforcement of that order, by putting forward arguments to establish that there has been a material change in the circumstances which justified the adoption of the decision.

Article 32(2) of that directive states however that those persons have ‘no right of entry to the territory’ of the Member State concerned while their application is being considered.

It is consequently expressly apparent from the wording of those provisions that Directive 2004/38 in no way prevents a Member State from adopting a return decision in relation to a person who applied for the lifting of the exclusion order imposed on him, in accordance with Article 32(1) of that directive, as long as the examination of that application has been concluded with a successful outcome for the applicant.

The same is necessarily the case where, as in the main proceedings, the person concerned re-entered the Member State concerned without having applied for the lifting of the exclusion order imposed on him.

As regards the question whether the competent authorities must again verify whether the conditions set out in Articles 27 and 28 of Directive 2004/38 have been satisfied, it follows from the very nature of an exclusion order that it remains in force as long as it has not been lifted and that the mere finding that it has been infringed allows those authorities to adopt a new removal decision against the person concerned.

(see paras 32-35, 39-49, operative part 1)