VIEW OF ADVOCATE GENERAL

WATHELET

delivered on 23 August 2013 ( 1 )

Case C‑383/13 PPU

M. G.,

N. R.

v

Staatssecretaris van Veiligheid en Justitie

(Request for a preliminary ruling from the Raad van State (Netherlands))

‛Directive 2008/115/EC — Return of illegally staying third-country nationals — Removal process — Article 15(6) — Detention measures — Article 41(2)(a) of the Charter of Fundamental Rights of the European Union — Principle of respect for the rights of the defence — The right to be heard’

I – Introduction

1. This request for a preliminary ruling, lodged by the Raad van State (Netherlands) on 5 July 2013, was made in proceedings between Messrs G. and R., two third-country nationals staying illegally in the Netherlands, and the Staatssecretaris van Veiligheid en Justitie (State Secretary for Security and Justice, ‘the Staatssecretaris’), concerning the legality of measures to extend their detention, adopted pursuant to Article 15(6) 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 ( 2 ) (‘the Return Directive’), in the light of Article 41(2)(a) of the Charter of Fundamental Rights of the European Union (‘the Charter’).

2. It is apparent from the request for a preliminary ruling that the substantive requirements for extending the detention measures imposed on Messrs G. and R. were met, as those measures were based on a lack of cooperation on the part of Messrs G. and R. with regard to their deportation and on the fact that the necessary documentation from third countries remained outstanding.

3. The referring court states, however, that the rights of defence of Messrs G. and R. were infringed in the course of the preparation of those measures.

4. The question raised in the present request for a preliminary ruling concerns the scope of the right, affirmed in Article 41(2)(a) of the Charter, of every person to be heard before any individual measure which would affect him or her adversely is taken, and, in particular, the legal consequences of infringement of that right.

5. The referring court raises the issues, first, of whether infringement by the national administrative authority of the general principle of respect for the rights of the defence in the course of the preparation of a measure extending detention within the terms of Article 15(6) of the Return Directive automatically and in all cases means that the detention must be lifted and, secondly, of the possible scope for weighing up, on the one hand, the adverse effects on the interests of the person concerned as a result of such infringement and, on the other, the interests of the Member State served by the measure extending the detention.

II – Legal context

A – European Union law

1. The Charter

6. Paragraphs 1 and 2 of Article 41 of the Charter, entitled ‘Right to good administration’, provide: ‘1. Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union. 2. This right includes: (a) the right of every person to be heard, before any individual measure which would affect him or her adversely is taken; ...’

7. The first paragraph of Article 47 of the Charter provides that ‘[e]veryone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article’. The second paragraph of Article 47 of the Charter concerns the right of everyone to an effective remedy before an independent and impartial tribunal previously established by law. That article states that everyone is to have the possibility of being advised, defended and represented. According to Article 48(2) of the Charter, respect for the rights of the defence of anyone who has been charged is to be guaranteed.

8. Paragraph 1 of Article 51 of the Charter, entitled ‘Field of application’, provides: ‘The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties.’

2. The Return Directive

9. Article 15 of the Return Directive, which is in the chapter relating to detention for the purpose of removal, is worded as follows: ‘1. 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. 2. Detention shall be ordered by administrative or judicial authorities. Detention shall be ordered in writing with reasons being given in fact and in law. When detention has been ordered by administrative authorities, Member States shall: (a) either provide for a speedy judicial review of the lawfulness of detention to be decided on as speedily as possible from the beginning of detention; (b) or grant the third-country national concerned the right to take proceedings by means of which the lawfulness of detention shall be subject to a speedy judicial review to be decided on as speedily as possible after the launch of the relevant proceedings. In such a case Member States shall immediately inform the third-country national concerned about the possibility of taking such proceedings. The third-country national concerned shall be released immediately if the detention is not lawful. 3. In every case, detention shall be reviewed at reasonable intervals of time either on application by the third-country national concerned or ex officio. In the case of prolonged detention periods, reviews shall be subject to the supervision of a judicial authority. 4. When it appears that a reasonable prospect of removal no longer exists for legal or other considerations or the conditions laid down in paragraph 1 no longer exist, detention ceases to be justified and the person concerned shall be released immediately. 5. 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. 6. Member States may not extend the period referred to in paragraph 5 except for a limited period not exceeding a further 12 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 – Netherlands law

10. Under Article 2:1(1) of the General Law on Administration (Algemene wet bestuursrecht), every person may, for the protection of his interests, in dealings with administrative authorities, be assisted or be represented by an authorised person.

11. Article 4:8(1) of the General Law on Administration provides that, before adopting any decision to which the person concerned, who has not requested that decision, may be expected to object, an administrative body must give that person the opportunity to make known his views, if: ‘(a) the decision relies on information relating to facts and interests which concern the interested party, and (b) the information concerned was not provided by the interested party himself.’

12. Under Article 59(1)(a) of the Law on Foreign Nationals of 2000 (Vreemdelingenwet 2000; ‘the Vw 2000’), if required in the interests of public policy or national security, a foreign national who is not lawfully resident may be placed in detention by the Staatssecretaris with a view to deportation. Under Article 59(5), the duration of the detention referred to in Article 59(1) may not exceed six months. Under Article 59(6) of the Vw 2000, the period referred to in paragraph 5 may be extended by a further period of 12 months in cases where, despite all reasonable efforts, the deportation is likely to last longer because of a lack of cooperation by the foreign national with regard to his deportation or because the documents required from third countries for that purpose are still outstanding.

13. Under Article 5.1a(1) of the Decree on Foreign Nationals of 2000 (Vreemdelingenbesluit 2000), a foreign national who is not lawfully resident may be placed in detention in the interests of public policy or national security if: ‘(a) there is a risk of the foreign national absconding, or (b) the foreign national avoids or hampers the preparation of return or the deportation process.’

14. Under Article 94(4) of the Vw 2000, the Rechtbank is to declare the appeal against a detention measure well founded if it finds that the application of the measure is contrary to the Vw 2000 or, on weighing up all interests involved, that it is not reasonably justified. In such a case, the Rechtbank is to order that the measure be set aside. Under Article 106(1) of the Vw 2000, if the Rechtbank orders that a detention order be set aside, or if detention is lifted before the request to have the measure set aside is dealt with, the Rechtbank may award damages to the foreign national which are payable by the State. Under Article 106(2), paragraph 1 of that article is to apply mutatis mutandis if the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Raad van State (Council of State) orders that the detention measure be set aside.

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

15. By separate decisions of 24 October 2012 and 11 November 2012, Messrs G. and R. were placed in detention pursuant to Article 59(1)(a) of the Vw 2000.

16. By separate extension decisions of 19 and 29 April 2013, the term of the detention measures imposed on Messrs G. and R. was extended by a maximum of 12 months under Article 59(6) of the Vw 2000 (‘the contested decisions’). Those decisions were based on the lack of cooperation on the part of Messrs G. and R. with regard to their deportation and on the fact that the necessary documentation from third countries remained outstanding.

17. By decision of 22 May 2013 and by oral ruling made on 24 May 2013, the Rechtbank Den Haag (District Court, The Hague) declared the separate actions brought by Messrs G. and R. against the contested decisions to be unfounded and rejected their claims for damages.

18. The Rechtbank Den Haag found that Mr G. had not been disadvantaged to such an extent as to justify annulment of the decision extending his detention. That court stated in that regard that, from the report of a discussion conducted on 5 April 2013 with Mr G. concerning his return, it appears that it was explained to him that the Staatssecretaris intended to extend the detention by a maximum of 12 months and that he was given the opportunity to contact his representative, if he so wished. In the case of Mr R., the Rechtbank Den Haag also found that he had not been so disadvantaged as to justify annulment of the extension decision. The Rechtbank held that Mr R. and his representative had been made sufficiently aware of the reasons for Mr R.’s stay in detention and of what was expected of him to minimise the duration of the detention.

19. Messrs G. and R. lodged appeals against those decisions and also requested the Administrative Jurisdiction Division of the Raad van State to award damages. The two cases – given their related substantive content – were dealt with jointly.

20. The referring court states that the substantive requirements for the extension of the detention measures have been met in the cases of Messrs G. and R. It adds that, according to its own settled case-law, where those requirements are not met a detention measure is automatically unlawful and therefore the detention must be lifted.

21. It is not disputed in the cases in the main proceedings that the principle of the rights of the defence was infringed in the course of the preparation of the contested decisions, the Raad van State having, in its examination of the appeals and also its reference for a preliminary ruling, considered that point to have be established.

22. However, according to the referring court, irregularities committed in the course of the preparation of the decision on placement in, or extension of, detention do not automatically lead to the conclusion that the detention measure is unlawful and therefore nor do they lead automatically to the setting aside of that measure. In such cases, a weighing up of interests takes place, inter alia between, on the one hand, the interests served by detention and, on the other, the extent to which the detainees have been disadvantaged by that irregularity. In other words, if all the substantive requirements laid down in the Vw 2000 are met, such irregularities will render the placement in, or extension of, detention unlawful only if the interests served by the placement in detention or the extension of detention are not reasonably proportionate to the seriousness of the irregularity and the interests infringed thereby.

23. Lastly, according to the referring court, after a decision is annulled because of findings of irregularities in the way in which it was prepared and taken, the administrative body concerned, as a rule, still has the opportunity to remedy those defects and thus arrive at a sound decision with regard to the same issue. However, the referring court notes that in detention cases such as the present cases Netherlands law does not give the Staatssecretaris that opportunity.

24. Stating that it was seeking a ruling from the Court solely on the legal consequences which should be attached, under EU law, to infringement of the rights of the defence, the Raad van State decided to stay the proceedings and refer the following question to the Court for a preliminary ruling: ‘Does infringement by the national administrative authority of the general principle of respect for the rights of the defence, which is also given expression in Article 41(2) of the [Charter], in the course of the preparation of an extension decision within the terms of Article 15(6) of [the Return Directive], automatically and in all cases mean that the detention must be lifted? Does that general principle of respect for the rights of the defence leave scope for a weighing up of interests in which, in addition to the seriousness of the infringement of that principle and the interests of the foreign national adversely affected thereby, the interests of the Member State served by the extension of the detention measure are also taken into account?’

IV – Urgent procedure

25. In its order for reference of 5 July 2013, the Raad van State requested that the present reference for a preliminary ruling should be dealt with under the urgent preliminary ruling procedure, pursuant to Article 107 of the Rules of Procedure of the Court.

26. The reasons given by the referring court for its request were that Messrs G. and R. were still in detention and that if the answer to the first part of the question is in the affirmative the detentions ought to be lifted immediately. However, according to the referring court, if the answer to the first part of the question is in the negative, this means that there is indeed scope for a weighing up of interests and the referring court should undertake such an exercise and decide as soon as possible whether or not such weighing up should lead to the lifting of the detentions. The referring court added that a number of comparable cases are currently pending before various courts in the Netherlands.

27. The Second Chamber of the Court decided, on 11 July 2013, on the Judge‑Rapporteur’s proposal and after hearing the Advocate General, to grant the referring court’s request that the reference for a preliminary ruling be dealt with under the urgent procedure.

V – Observations submitted to the Court

28. Written observations have been submitted by Messrs G. and R., the Netherlands Government and the European Commission. All of them, together with the Polish Government, presented oral argument at the hearing held on 8 August 2013.

29. Mr G. notes that the Court held in Dokter and Others ( 3 ) that the protection of public health could justify the competent authority adopting appropriate measures without first obtaining the view of the interested party. In that case, it was a matter of taking measures to prevent the outbreak and spread of foot-and-mouth disease. He also notes that in Kadi and Al Barakaat International Foundation v Council and Commission, ( 4 ) the Court followed the same line of reasoning. However, Mr G. contends that major interests like public health or EU security do not have any relevance for assessing whether it is necessary to extend a detention measure imposed in order to carry out a removal process on the ground of illegal residence. In the present case there can be no question of an exceptional situation justifying a structural infringement of the rights of defence of all illegally staying third-country nationals who are in detention. He argues that the right to liberty is one of the most fundamental human rights and that it requires effective protection. Mr G. adds that persons kept in detention are usually vulnerable. Moreover, according to Mr G., the authorities in question were able to foresee some time in advance the possibility of extending the detention measure beyond the maximum detention period, which must not in principle exceed six months. He considers, lastly, that it is not particularly difficult to comply with the obligation to arrange the procedure in such a way that the third-country national in question and his or her representative have the opportunity to respond appropriately to all aspects of the proposed measure.

30. In Mr R’s view, infringement by the national administrative authority of the rights of the defence automatically and in all cases means that the extension decision must be annulled and the detention lifted since, in the absence of a lawful extension decision, detention cannot be maintained for longer than six months. He contends that it is never impossible to arrange a hearing with a view to an extension decision, during which the measure envisaged, together with its objective, scope and legal consequences, will be explained to the person concerned, and at which that person is invited to make known his views. Mr R. also contends that the principle of the rights of the defence is so fundamental, and infringement of it so irreparable, that infringement of that principle does not justify a weighing up of interests. Mr R. maintains that a weighing up of interests, in which the interests of the Member State would play a part in the case of extension of the detention, would render the rights of the defence illusory.

31. According to Mr R., if a weighing up of interests were to take place, the balance should be in favour of the interest of the illegally staying third-party national, since the principle of the rights of the defence has been infringed, the national concerned is in a position of inferiority and dependence, and the rules and procedures relating to respect for the rights of the defence have long been familiar to the Member States, which can implement them very easily.

32. The Netherlands Government contends that, although national administrative law recognises that the services of a representative may be used during the administrative stage prior to the adoption of measures taken under the Return Directive, that option is not an obligation stemming from that directive or from any other provision of EU law. It contends that infringement of national administrative law should not automatically lead to the finding that there has been an infringement of the principle of the rights of the defence under EU law.

33. The Netherlands Government states that discussions took place with Messrs G. and R. on a number of occasions during their detention. They were therefore well aware of the grounds for the detention and the extension of the detention. According to that government, the irregularities in the preparation of the extension decisions were, as appropriate, either avoided or ‘remedied’, since the persons concerned were not so adversely affected as to warrant a finding that their rights of defence had been infringed.

34. It contends that the legal consequences of infringement of the rights of the defence in the present case are determined by national law. Such infringement does not entail automatically and in all cases the lifting of detention. In that regard, the Netherlands Government contends that, according to settled case-law, a procedural irregularity leads to annulment of all or part of a decision only if it is established that the content of that decision could have differed if that irregularity had not occurred. ( 5 )

35. The Netherlands Government argues that, if the slightest irregularity, however minor, in the preparation of an extension decision, affecting the rights of the defence, were to entail the lifting of detention it would reduce the effectiveness of the Return Directive and hence the implementation of an effective return policy.

36. It considers that the determination of the consequences of infringement of the principle of the rights of the defence leaves scope for a weighing up of interests, in particular if the effectiveness of the measure extending the detention might be irrevocably affected thereby. So far as the seriousness of the infringement is concerned, the Netherlands Government observes that it is appropriate to examine the nature of the infringement and its effects for the person concerned. It considers that in the cases in the main proceedings the infringement of the rights of the defence was limited and that the respective situations of Mr G. and Mr R. were not adversely affected, given that it is legally certain in both cases that the substantive requirements for detention were met. Moreover, according to the Netherlands Government, it is necessary to take into consideration the public interest, in particular the need to combat illegal immigration, and the objective of the Return Directive to implement an ‘effective return policy’.

37. The Polish Government contended at the hearing that the consequences to be drawn from an infringement of the right to be heard, as provided for in Article 41(2)(a) of the Charter, in the course of the adoption of a measure extending detention in accordance with Article 15(6) of the Return Directive, are determined not by those provisions but by national law, according to the principle of procedural autonomy. Any other solution would infringe the principles of subsidiarity and proportionality. In the view of that government, Article 15(6) of the Return Directive lays down only the conditions for extension of detention, together with the maximum duration of such extension, and refers directly to national law for the remainder, subject to compliance with the principles of equivalence, effectiveness and effective judicial protection. As regards the consequences of failure to observe procedural safeguards, the Polish Government is of the view that the national court should determine them in the light of the content of the case before it as a whole. It is not therefore required to annul automatically a decision adopted in breach of the rights of the defence and may take into consideration other factors, such as the influence of such an infringement on the outcome of the proceedings.

38. The Commission states, first, that deprivation of liberty in the context of detention measures in accordance with the Return Directive, however drastic it may be for the person concerned, is not a criminal penalty. It also considers that Member States are required, when applying a return procedure and, in particular when extending detention, to give the persons concerned a prior hearing, but it argues that it does not follow from Article 15(2) of the Return Directive that infringement of the right to a prior hearing means that the person concerned must be released immediately. In the event of infringement of the rights of the defence there should therefore be scope for a weighing up of interests. The rights of the defence are not absolute prerogatives and might involve restrictions. Consequently, the Commission considers that, in order to determine the consequences of an infringement of the rights of the defence, in particular of the right to a prior hearing, a national court must be in a position to take into account all the relevant factors in the case.

39. To that end, the court should, so the Commission argues, be able to take into account, first, the seriousness of the infringement of the rights of the defence and the possibility of remedying the infringement, where appropriate, by means of a new decision and, secondly, the public interest served by the ending of the illegal residence and by an effective return policy in accordance with recitals 4 and 6 in the preamble to the Return Directive. According to the Commission, an affirmative, unqualified answer to the first part of the question referred for a preliminary ruling would mean, therefore, that an individual concerned who still meets the conditions for detention laid down in Article 15(1) and (4) of the Return Directive would have to be released automatically, even in the event of a relatively limited infringement of the rights of the defence. In view of the nature of the conditions for detention as laid down in Article 15(1) of the Return Directive, it is likely that rectification of the infringement by means of a new detention decision, a sound decision this time, would not be very effective, since the person concerned could have absconded in the meantime and thus have prevented return.

40. On the other hand, according to the Commission, a negative answer to the first part of the question referred gives the national court discretion to make a full assessment of the seriousness of the infringement of the rights of the defence. The national court could also consider the possible scope for remedying the infringement by means of a new decision or take account of the public interest served by ending the illegal stay and ensuring an effective return policy.

41. According to the Commission, a weighing up of interests will not in any event result in the public interest always prevailing where detention and return are concerned. The national court must make an overall assessment of all the interests involved in each case, weighing them one against another. In making that specific assessment, the national court must take particular account not only of the seriousness of the infringement but also of relevant factors that the person concerned may have raised during the administrative procedure, and the likelihood of those factors influencing the outcome of that procedure. Such an approach could be based, mutatis mutandis, on the approach taken by the Court of Justice in Distillers Company v Commission in the area of competition law. The Commission considers that in the circumstances of the present case, where the persons concerned have been heard, albeit not properly, and where at first sight there are no factors that might have influenced the outcome of the administrative procedure, the national court might tilt the balance in this case in favour of the public interest.

VI – Analysis

A – The existence of an infringement of the right to be heard

42. It should be noted at the outset that the referring court has requested the Court for a ruling only on the question of the legal effects with regard to EU law of the infringement that it has found of the rights of defence of Messrs G. and R.

43. The doubts expressed by the Netherlands Government on this subject in its written observations ( 6 ) cannot therefore be taken into account, as the Court is required to answer questions of interpretation of EU law on the basis of the legislative and factual context which the referring court is responsible for defining. ( 7 )

B – The right to be heard in EU law

44. Respect for the rights of the defence constitutes a fundamental principle of EU law, and the right to be heard in any proceedings forms an integral part of it. That right is affirmed not only in Articles 47 and 48 of the Charter, which ensure respect for both the rights of the defence and the right to fair legal process in all judicial proceedings, but also in Article 41 thereof, which guarantees the right to good administration. ( 8 ) The 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. ( 9 )

45. At the hearing the Netherlands Government stated that Netherlands law provided for speedy judicial review of the lawfulness of detention measures; ( 10 ) however, the right of access to a court is not at issue in the present case. Moreover, I would point out that, where detention measures or measures extending detention are ordered by judicial authorities, Article 41(2)(a) of the Charter does not apply. In the cases in the main proceedings, however, the measures extending detention were ordered by the Staatssecretaris, an administrative authority.

46. Although the general term ‘rights of the defence’ may (although not necessarily) cover the rights affirmed in Articles 41 and 47 of the Charter, I consider that the rights protected by those provisions are quite distinct rights and apply in different contexts: the first in the pre-litigation administrative context and the second in the context of court proceedings. It follows that the rights in question cannot be merged lest the right of an individual to be heard be ‘swept aside’ when the administrative authorities are minded to adopt a measure which will adversely affect that individual.

47. The EU legislature’s intention to protect individuals subject to an administrative procedure throughout that procedure is clear from the relationship between Articles 41 and 47 of the Charter. Those two very different rights must not be conflated, otherwise there could be a break in the continuity of the system of rights of the defence safeguarded by the Charter.

48. I consider that the fact that, under Article 15(2) of the Return Directive, the national court is to rule on the legality of detention ordered by administrative authorities cannot retrospectively cover a failure by those authorities to comply with Article 41 of the Charter. An infringement of Article 41 of the Charter occurring at the time a decision extending detention is adopted by administrative authorities cannot be rectified merely by the fact that judicial review is available at a later stage.

49. The 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, ( 11 ) and Article 41(2)(a) of the Charter confirms that obligation ( 12 ) and establishes it as having constitutional status.

50. Article 41(2)(a) of the Charter thus guarantees ‘every person’, including therefore illegally staying third-country nationals, the right to be heard before any individual measure which would affect him or her adversely is taken.

51. Thus, it follows from the wording of that provision that it is of general application and applies in all proceedings which are liable to culminate in a measure adversely affecting a person. Moreover, that provision applies even where the applicable legislation does not expressly provide for such a procedural requirement. ( 13 )

52. It is clear that, by virtue of Article 51 of the Charter, Article 41(2)(a) thereof applies to competent national authorities when they implement the Return Directive. ( 14 ) I consider that it follows, inter alia, from Dokter and Others, M. and Honeywell Aerospace ( 15 ) that not only are national administrative authorities required to respect the rights of the defence when they implement EU law, but also that, in order to avoid those rights remaining a dead letter or a pure formality, the persons concerned must be able to rely on them directly before the national courts.

53. The right to be heard, affirmed in Article 41(2)(a) of the Charter, applies of necessity to measures extending the detention of illegally staying third-country nationals, adopted by national authorities under provisions of national law transposing Article 15(6) of the Return Directive. ( 16 ) Such measures, which entail depriving illegally staying third-country nationals of their liberty, clearly affect them adversely.

54. Although the Commission was correct in stating that detention measures adopted pursuant to Article 15 of the Return Directive were not of a criminal-law nature ( 17 ) and did not constitute prison sentences, it should be noted that the Court held in El Dridi that the use of a detention measure is the most serious constraining measure allowed under the Return Directive under a forced removal procedure. ( 18 ) That is why a detention measure which, although it is not a criminal-law penalty, none the less entails total deprivation of liberty, is designed to be a measure of last resort, provided for only where enforcement of the return decision in the form of removal is liable to be jeopardised by the conduct of the person concerned. That measure is strictly regulated, pursuant to Articles 15 and 16 of that directive, inter alia in order to ensure observance of the fundamental rights of the third‑country nationals concerned. ( 19 ) The Return Directive, in pursuing the establishment of an effective removal and repatriation policy, based on common standards, ensures that persons are returned in a humane manner and with full respect for their fundamental rights and also their dignity. ( 20 )

55. At this point, I should like to state emphatically that, contrary to the arguments put forward by the Netherlands Government ( 21 ) and the Commission, ( 22 ) a confirmed infringement of the right to be heard at the time of the adoption of a measure extending detention in accordance with Article 15(6) of the Return Directive can in no circumstances be regarded as a ‘minor’ or ‘limited’ infringement of that right. Concurring with Mr G.’s observations, ( 23 ) I consider that the right to liberty is one of the most fundamental human rights. ( 24 ) Although that right is not absolute and is subject to certain limitations, inter alia in the field of illegal immigration as in the present case, every decision by the public authorities based on such limitations must strictly comply with all the statutory conditions circumscribing those limitations.

56. In addition, contrary to the contentions of the Netherlands Government ( 25 ) and the Commission, ( 26 ) I consider that the reasoning of the Court, in paragraph 26 of Distillers Company v Commission, according to which a procedural irregularity will lead to annulment of all or part of a decision only if it is established that the content of the contested decision could have been different if that irregularity had not occurred, cannot be applied by analogy with regard to measures that have such a restrictive effect on personal freedom as detention.

57. As a matter of principle, the argument that, if the persons concerned had been given a hearing, that would not have influenced the outcome of the proceedings at issue cannot be accepted as it would undermine the very substance of the rights of the defence; that is particularly the case when that argument is not substantiated in any way.

C – The effects of an infringement of the right to be heard

1. Principal line of reasoning

58. Even if it should no longer be possible to refer to a minor infringement, the Netherlands Government none the less contends that the legal consequences of a failure to respect the principle of the rights of the defence are governed by national law. ( 27 ) According to that government, the Return Directive does not contain any provision setting out the legal consequences which a national court must attach to an infringement of the principle of the rights of the defence in the preparation of a measure extending detention within the terms of Article 15(6) of that directive. It submits that it is clear from paragraph 38 of Sopropé that, in the absence of rules laid down by EU law, it is for the national court to determine the legal consequences to be attached to an infringement of the principle of the rights of the defence in accordance with the principles of equivalence and effectiveness.

59. I cannot accept that argument.

60. As is absolutely clear from paragraph 38 of Sopropé, the principle of procedural autonomy applies only where EU law does not lay down the rules for implementing legislation, those rules being governed, as a consequence, by the internal legal order of the Member States. ( 28 )

61. Even if this is one of the rare cases in which EU law itself lays down a penalty for an unlawful act, ( 29 ) it seems to me that in the present case the legal consequences to be drawn by the national court from infringement of the right to be heard, affirmed by Article 41(2)(a) of the Charter, at the time of the detention of an illegally staying third-country national are laid down in Article 15(2) of the Return Directive.

62. Article 15(2) of the Return Directive clearly and expressly provides that ‘[t]he third-country national concerned shall be released immediately if the detention is not lawful’.

63. That mandatory provision allows Member States no discretion and reflects the express intention of the EU legislature to ensure that no illegally staying third-country national may be deprived of his liberty without that right being respected.

64. According to the Commission, Article 15(2) of the Return Directive does not determine the legal consequences deriving from an infringement of the right to be heard when a measure extending detention is adopted, since that provision concerns only the substantive requirements ( 30 ) to be met in order for detention or extension to be ordered, ‘and not the decision leading thereto’. I do not concur with that interpretation of Article 15(2) of the Return Directive, which excludes respect for fundamental rights from the issue of whether or not the detention concerned was ‘lawful’. Moreover, I do not understand the distinction which the Commission made at the hearing between the lawfulness of the detention and the lawfulness of the decision ordering the detention. I fail to see how detention can still be lawful when the decision ordering it is not lawful.

65. I propose therefore that the Court should answer the question referred to the effect that infringement by the national administrative authority of the general principle of respect for the rights of the defence (in the present case, of the right to be heard, as provided for in Article 41(2)(a) of the Charter) in the course of the preparation of a measure extending detention within the terms of Article 15(6) of the Return Directive, means that the measure must be annulled and that the person concerned must be released immediately in accordance with Article 15(2) of the Return Directive.

2. Subsidiary line of reasoning

66. To cover the eventuality that the Court does not support that interpretation of Article 15(2) of the Return Directive and of Article 41(2)(a) of the Charter, I must examine the case-law of the Court regarding the conclusions to be drawn from a finding of infringement of the rights of the defence, and in particular of the right to be heard in a national administrative procedure implementing EU law, in order to determine the rights that a victim of such an infringement may derive from it.

67. I will not discuss a weighing up of interests, as proposed by the referring court. As the observations made by the Judge-Rapporteur at the hearing showed, this is a puzzling concept, particularly so far as the factors or interests that should be compared are concerned, a point on which no clarification was given at the hearing.

68. Although, according to the Court, the general rule is indeed that the contested decisions must quite simply be annulled, ( 31 ) it is also settled case-law that respect for the right to be heard is not an absolute requirement and may be restricted, provided that the restrictions in fact correspond to objectives of general interest pursued by the measure in question and that they do not constitute, with regard to the objectives pursued, a disproportionate and intolerable interference which infringes upon the very substance of the rights guaranteed. ( 32 )

69. Thus, in cases of great urgency and where compelling reasons so require, both national and EU authorities may adopt individual measures which adversely affect individuals without first obtaining their views.

70. The Court thus held that a restriction on the right to be heard may be justified and therefore tolerated where public health was under threat from foot-and-mouth disease and where public security was under threat from terrorism.

71. In Dokter and Others, the Court found that, given the highly contagious nature of foot-and-mouth disease and the need to control it promptly and effectively in order to protect public health, the competent authority could adopt appropriate measures in that regard without all potentially concerned parties having previously been given the opportunity to familiarise themselves with the facts and documents on which those measures were based or expressing a view on those facts and documents. According to the Court, such a restriction would be a disproportionate intervention only if the interested parties were given no opportunity to contest those measures in subsequent proceedings and to make their views known effectively at that stage. ( 33 )

72. Furthermore, in France v People’s Mojahedin Organization of Iran ( 34 ) the Court held that an exception to the fundamental right to respect for the rights of the defence may be allowed with regard to initial decisions to freeze funds directed against certain persons and entities associated with terrorist networks.

73. Such measures, adopted without first hearing the persons concerned, are justified by the need to ensure that the freezing measures are effective and, in short, by overriding considerations pertaining to safety or the conduct of the international relations of the Union and of its Member States. ( 35 ) However, the Court has ruled that those authorities should inform the persons concerned of the evidence justifying such measures and afford them the right to be heard, either at the same time as, or immediately after, they are adopted. ( 36 )

74. Although I accept, as the Netherlands Government submits, the argument that it is necessary to take all the circumstances of the present case into account, I also consider, as does Mr G, ( 37 ) that the exceptional circumstances of serious, extreme urgency, in relation to asset-freezing measures in Kadi I and France v People’s Mojahedin Organization of Iran and in relation to foot-and-mouth disease in Dokter and Others, which justified restrictions of the right to be heard in those cases, are wholly absent from the cases in the main proceedings.

75. First, the global threat of terrorism, which necessitates the urgent adoption of asset-freezing measures, and the serious risk to public health presented by foot-and-mouth disease, are not of the same order of seriousness or public interest as the risk of an illegally staying third-country national absconding.

76. Moreover, as Mr R. states, there was nothing to prevent the Netherlands authorities from giving the persons concerned an effective prior hearing with a view to the adoption of the measures extending their detention, a procedural safeguard which it was not difficult to carry out, especially since there was no urgency because the persons concerned were already being held in detention and therefore presented no risk of absconding. ( 38 )

77. Lastly, it is by no means apparent from the documents submitted to the Court that Messrs G. and R. attempted to exploit improperly the procedures put in place by the Return Directive, including the provisions relating to detention measures, in order to bring about the infringement of their rights at issue in the main proceedings.

78. Secondly, the restrictions on the property right at issue in Dokter and Others, Kadi I and France v People’s Mojahedin Organization of Iran cannot be compared to an extreme or, in the Commission’s words, ‘drastic’ measure ( 39 ) such as extending the detention of illegally staying third-country nationals for a period of 12 months.

79. Thirdly, the existence of circumstances which might justify the adoption of measures taken in breach of the right to be heard must be verified at the time such measures are adopted and not subsequently.

80. I consider that a modification of the consequences of an infringement of a fundamental right cannot serve to remedy such an infringement at a later date where no compelling reasons existed at the time the contested measure was adopted.

81. In the light of the case-law of the Court and of circumstances such as those at issue in the main proceedings, infringement of the right to be heard can give rise only to annulment of the contested decisions and the release of the persons concerned.

D – An alternative?

82. Besides the consequences envisaged by the referring court, namely annulment of the contested decisions followed by release of the persons concerned or the maintenance of those decisions and thus of the detention, a third option was put forward at the hearing, namely annulment of the contested decisions and the adoption at the same time of lawful new decisions (or the adoption of lawful new administrative decisions before the annulment of the contested decisions).

83. The Court itself acknowledged in Kadi I the possibility of moderating the legal consequences of a decision infringing the right to be heard.

84. In paragraphs 373 to 376 of Kadi I, the Court, in view of the serious and irreversible effects of annulment of asset-freezing measures on the effectiveness of those restrictive measures, maintained the effects of the measures adopted in breach of the right to be heard for a short period in order to enable the authorities to remedy the infringements found.

85. I would point out, first of all, that that solution concerned initial decisions to freeze funds where the surprise effect was necessary, which is not the case here. However, I note especially that, as was confirmed at the hearing and as was stated by the referring court, the Staatssecretaris does not have that power under national law, either in relation to the detention decision or in relation to the decision to extend detention. ( 40 )

VII – Conclusion

86. In the light of all the foregoing considerations, I propose that the question referred for a preliminary ruling by the Raad van State should be answered as follows: An infringement by the national administrative authority, in the course of the preparation of a measure extending detention within the terms of Article 15(6) 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, of the right for every person to be heard before any individual measure which would affect him or her adversely is taken, as affirmed in Article 41(2)(a) of the Charter of Fundamental Rights of the European Union, means that the measure must be annulled and that the person concerned must be released immediately in accordance with Article 15(2) of that directive. As a subsidiary point, it is to be inferred from the case-law of the Court concerning the consequences under EU law of an infringement of the right to be heard that, in cases such as those at issue in the main proceedings, the contested decisions extending detention must be annulled and the third-country nationals who have been detained must be released.

( 1 ) Original language: French

( 2 ) OJ 2008 L 348, p. 98.

( 3 ) Case C-28/05 [2006] ECR I-5431.

( 4 ) Joined Cases C-402/05 P and C-415/05 P [2008] ECR I-6351 (‘Kadi I’).

( 5 ) Case 30/78 Distillers Company v Commission [1980] ECR 2229, paragraph 26 (competition case); Case C-142/87 Belgium v Commission [1990] ECR I-959, paragraph 48 (State aid case); and Case C-194/99 P Thyssen Stahl v Commission [2003] ECR I-10821, paragraph 31 (competition case).

( 6 ) Although at the hearing the Netherlands Government acknowledged certain errors on the part of the administrative authority in the preparation of the contested decisions.

( 7 ) See, by analogy, Case C-160/09 Ioannis Katsivardas - Nikolaos Tsitsikas [2010] ECR I-4591, paragraph 27.

( 8 ) Case C‑277/11 M. [2012] ECR, paragraph 82.

( 9 ) Ibid., paragraph 87.

( 10 ) In the cases in the main proceedings, Messrs G. and R. brought the matter before the Rechtbank Den Haag, which ruled on the lawfulness of extending their detention within an approximate period of one month. See points 16 and 17 of this View.

( 11 ) See, inter alia, Case C-32/95 P Commission v Lisrestal and Others [1996] ECR I-5373, paragraph 21; Case C-7/98 Krombach [2000] ECR I-1935, paragraph 42; Case C-462/98 P Mediocurso v Commission [2000] ECR I-7183, paragraph 36; Case C-287/02 Spain v Commission [2005] ECR I-5093, paragraph 37; and Case C-349/07 Sopropé [2008] ECR I-10369, paragraph 37.

( 12 ) Joined Cases C‑584/10 P, C‑593/10 P and C‑595/10 P Commission and Others v Kadi [2013] ECR, paragraph 99.

( 13 ) See, to that effect, M., paragraphs 84 and 86.

( 14 ) Article 1 of the Return Directive and recital 24 in the preamble thereto.

( 15 ) Case C-300/03 [2005] ECR I-689.

( 16 ) I consider that the words ‘in accordance with national law’ contained in Article 15(6) of the Return Directive relate only to the power of Member States to determine the length of any extension of detention up to a maximum of 12 months.

( 17 ) Point 38 of this View. See, to that effect, the View of Advocate General Mázak in Case C-61/11 PPU El Dridi [2011] ECR I-3015, point 35.

( 18 ) Paragraph 42 of that judgment. Priority is, in principle, to be given to voluntary compliance with a return decision adopted under Article 6(1) of the Return Directive. Article 7(1) of the Return Directive provides that that decision is to provide for an appropriate period for voluntary departure of between 7 and 30 days. In a situation where the obligation to return has not been complied with within the period for voluntary departure, Article 8(1) and (4) of the Return Directive provide that, in order to ensure effective return procedures, the Member State which has issued a return decision against an illegally staying third-country national is required to carry out the removal by taking all necessary measures including, if need be, coercive measures, in a proportionate manner and with due respect for, inter alia, fundamental rights. See, to that effect, El Dridi, paragraphs 36 to 38.

( 19 ) See, to that effect, El Dridi, paragraph 42.

( 20 ) El Dridi, paragraph 31, and recital 2 to the Return Directive.

( 21 ) Points 35 and 36 of this View.

( 22 ) Point 39 of this View.

( 23 ) Point 29 of this View.

( 24 ) Article 6 of the Charter. Moreover, under the title ‘Right to liberty and security’, Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950, provides:

‘1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

...’

( 25 ) Point 34 of this View.

( 26 ) Point 41 of this View.

( 27 ) Point 34 of this View.

( 28 ) In paragraph 38 of Sopropé, the Court ruled that ‘[a]s regards the implementation of [the principle of respect for the rights of the defence] and, in particular, the periods within which the rights of the defence must be exercised, it must be stated that, where those periods are not, as in the main proceedings, fixed by Community law, they are governed by national law on condition, first, that they are the same as those to which individuals or undertakings in comparable situations under national law are entitled and, secondly, that they do not make it impossible in practice or excessively difficult to exercise the rights of defence conferred by the Community legal order.’

( 29 ) In paragraph 47 of El Dridi, the Court ruled that ‘Articles 15 and 16 of [the Return Directive] … are unconditional and sufficiently precise, so that no other specific elements are required for them to be implemented by the Member States’.

( 30 ) That is to say, the material conditions laid down in Article 15(1) of the Return Directive, such as the risk of absconding, or hampering of the return or the removal process.

( 31 ) Commission v Lisrestal, paragraph 45; Mediocurso v Commission, paragraph 50; and Case C-135/92 Fiskano v Commission [1994] ECR I-2885, paragraph 44.

( 32 ) See, to that effect, Dokter and Others, paragraph 75 and the case-law cited.

( 33 ) Ibid., paragraph 76.

( 34 ) Case C-27/09 P [2011] ECR I-13427, paragraphs 61 to 67.

( 35 ) Kadi I, paragraph 342, and France v People’s Mojahedin Organization of Iran, paragraph 67.

( 36 ) Kadi I, paragraph 345, and France v People’s Mojahedin Organization of Iran, paragraph 61.

( 37 ) Point 29 of this View.

( 38 ) In that regard, I note by way of analogy, that the Court ruled in the case of a subsequent decision to freeze funds whereby measures directed against a person or entity are maintained (a decision comparable to a decision extending detention, like those at issue in the cases in the main proceedings), that the surprise effect is no longer necessary in order to ensure that the measures are effective, with the result that the adoption of such measures must, in principle, be preceded by notification of the incriminating evidence and by allowing the person or entity concerned an opportunity of being heard (France v People’s Mojahedin Organization of Iran, paragraph 62).

( 39 ) Point 38 of this View.

( 40 ) Point 23 of this View.