Article 11(2) of Directive 2008/115 on common standards and procedures in Member States for returning illegally staying third-country nationals must be interpreted as precluding a provision of national law which makes the limitation of the length of an entry ban subject to the making by the third-country national concerned of an application seeking to obtain the benefit of such a limit.

That article precludes a continuation of the effects of entry bans of unlimited length made before the date on which Directive 2008/115 became applicable, beyond the maximum length of entry ban laid down by that provision, except where those entry bans were made against third-country nationals constituting a serious threat to public order, public security or national security.

Article 11(2) of Directive 2008/115 on common standards and procedures in Member States for returning illegally staying third-country nationals must be interpreted as precluding breach of an entry and residence ban in the territory of a Member State, which was handed down more than five years before the date either of the re-entry into that territory of the third-country national concerned or of the entry into force of the national legislation implementing that directive, from giving rise to a criminal sanction, unless that national constitutes a serious threat to public order, public security or national security.

Directive 2008/115 on common standards and procedures in Member States for returning illegally staying third-country nationals must be interpreted as precluding a Member State from providing that an expulsion or removal order which predates by five years or more the period between the date on which that directive should have been implemented and the date on which it was implemented, may subsequently be used as a basis for criminal proceedings, where that order was based on a criminal law sanction within the meaning of Article 2(2)(b) of that directive and where that Member State exercised the discretion provided for under that provision.

The consequence of the use by a Member State of the discretion provided for in Article 2(2)(b) of Directive 2008/115 at the latest upon expiry of the period for implementing that directive is that third-country nationals referred to therein will not at any time fall within the scope of that directive. In contrast, in so far as a Member State has not yet made use of that discretion after expiry of the said time period for implementation, in particular because of the fact that it has not yet implemented Directive 2008/115 in national law, it may not avail itself of the right to restrict the scope of the persons covered by that directive pursuant to Article 2(2)(b) thereof with regard to those persons who were already able to avail themselves of the effects of that directive.

In those circumstances, a restriction of the scope of the persons covered by Directive 2008/115 pursuant to Article 2(2)(b), which is carried out only after expiry of the time period for implementing that directive, is not binding on a person who was the subject of a removal order which predates by five years or more the date on which Directive 2008/115 should have been transposed and who entered into the territory of that Member State after national rules which availed themselves of the discretion provided for under that provision entered into force. The consequence of exercising the discretion provided for at Article 2(2)(b) of Directive 2008/115 against such a person who could already directly rely on the relevant provisions of that directive would be to worsen that person’s situation.

(see paras 52-56, operative part 3)