Criminal proceedings against Gjoko Filev and Adnan Osmani.
Date: 2013-09-19
36. In that regard, the Court has already held that whilst neither point (3)(b) of the first paragraph of Article 63 EC, a provision which was reproduced in Article 79(2)(c) TFEU, nor Directive 2008/115, adopted inter alia on the basis of the first of those two provisions, precludes Member States from having competence in criminal matters in the area of illegal immigration and illegal stays, they must adjust their legislation in that area in order to ensure compliance with European Union law. In particular, those States may not apply criminal legislation capable of imperilling the achievement of the objectives pursued by that directive, thus depriving it of its effectiveness (see Case C‑61/11 PPU El Dridi  [2011] ECR I‑3015, paragraphs 54 and 55, and Case C‑329/11 Achughbabian [2011] ECR I‑0000, paragraph 33).
37. It follows that a Member State may not impose criminal sanctions for breach of an entry ban falling within the scope of Directive 2008/115 if the continuation of the effects of that ban does not comply with Article 11(2) of that directive.
39. In that regard, it is important to note from the outset that that directive does not include a provision providing for transitional arrangements in relation to entry-ban decisions taken before it became applicable.
40. None the less, it follows from the Court’s settled case-law that new rules apply immediately, except in the event of a derogation, to the future effects of a situation which arose under the old rules (see Case C‑162/00 Pokrzeptowicz‑Meyer  [2002] ECR I‑1049, paragraph 50, Joined Cases C‑395/08 and C‑396/08 Bruno and Others  [2010] ECR I‑5119, paragraph 53, and Case C‑393/10 O’Brien  [2012] ECR I‑0000, paragraph 25).
41. It follows that Directive 2008/115 is applicable to those effects which occur after the date of its applicability in the Member State concerned of entry-ban decisions taken under national rules which were applicable before that date (see, by analogy, Case C‑357/09 PPU Kadzoev  [2009] I‑11189, paragraph 38).
42. Therefore in order to assess whether the continuation of the effects of such decisions is consistent with Article 11(2) of Directive 2008/115 in relation in particular to the maximum length of five years in principle under that provision for an entry ban, account should also be taken of the period during which that prohibition was in force before Directive 2008/115 became applicable (see, by analogy, Kadzoev , paragraph 36, and Bruno and Others , paragraph 55).
43. Indeed, failure to take account of that period would be inconsistent with the objective pursued by Article 11(2) of Directive 2008/115 which is, as has been noted at paragraph 32 of the present judgment, to ensure that the length of an entry ban does not exceed five years, except in the cases referred to in the second sentence of that provision (see, by analogy, Kadzoev , paragraph 37).
50. It should be noted that Article 2(2)(b) of Directive 2008/115 allows Member States to decide not to apply that directive to third-country nationals who are the subject of, inter alia, return as a criminal law sanction or as a consequence of a criminal law sanction in accordance with the provisions of national law (see, to that effect, El Dridi , paragraph 49, and Achughbabian , paragraph 41).