Z. Zh. v Staatssecretaris van Veiligheid en Justitie and Staatssecretaris van Veiligheid en Justitie v I. O.
Date: 2015-06-11
29. That court observes that Directive 2008/115 does not contain any definition of the concept of ‘risk to public policy’ in Article 7(4) of that directive and adds that the history of that concept provides no clues as to its scope. It points out that, since that provision also does not contain any express reference to the law of the Member States, that concept should, according to the settled case-law of the Court (see, inter alia, judgments in Ekro , 327/82, EU:C:1984:11, paragraph 11, and Brouwer , C‑355/11, EU:C:2012:353, paragraph 36), be given an independent and uniform interpretation, considering its usual meaning in everyday language, and taking into account the context in which it occurs and the purposes of the rules of which it forms part.
42. It is settled case-law that the meaning and scope of terms for which EU law provides no definition must be determined by considering their usual meaning in everyday language, while also taking into account the context in which they occur and the purposes of the rules of which they are part. When those terms appear in a provision which constitutes a derogation from a principle, they must be read so that that provision can be interpreted strictly. Furthermore, the preamble to a European Union measure may explain the measure’s content (see, to that effect, judgment in Wallentin-Hermann , C‑549/07, EU:C:2008:771, paragraph 17 and the case-law cited).
44. As is apparent from recital 10 in the preamble to Directive 2008/115, priority is to be given, except where otherwise provided for, to voluntary compliance with the obligation resulting from that return decision, Article 7(1) of Directive 2008/115 providing that the decision must provide for an appropriate period for voluntary departure of between 7 and 30 days (see judgment in El Dridi , C‑61/11 PPU, EU:C:2011:268, paragraph 36).
46. Article 7(4) of that directive provides that it is only in particular circumstances, such as where there is a risk to public policy, that Member States may grant a period shorter than seven days for voluntary departure or even refrain from granting such a period (see, to that effect, judgment in El Dridi , C‑61/11 PPU, EU:C:2011:268, paragraph 37). As the Advocate General observed in point 43 of her Opinion, to be able to rely on the derogation provided for in that provision on the ground that there is a risk to public policy, a Member State must be able to prove that the person concerned in fact constitutes such a risk.
47. Secondly, by providing that the Member States are, in principle, required to grant a period for voluntary departure to illegally-staying third-country nationals, Article 7 of Directive 2008/115 seeks, inter alia, to ensure that the fundamental rights of those nationals are observed in the implementation of a return decision taken under Article 6 of that directive. In accordance with Article 79(2) TFEU, the objective of Directive 2008/115 is, as is apparent from recitals 2 and 11 in the preamble thereto, to establish an effective removal and repatriation policy, based on common standards and common legal safeguards, for persons to be returned in a humane manner and with full respect for their fundamental rights and dignity (see judgment in Mahdi , C‑146/14 PPU, EU:C:2014:1320, paragraph 38).
48. It follows from this that, while Member States essentially retain the freedom to determine the requirements of public policy in accordance with their national needs, which can vary from one Member State to another and from one era to another, the fact still remains that, in the European Union context and particularly when relied upon as a justification for derogating from an obligation designed to ensure that the fundamental rights of third-country nationals are respected when they are removed from the European Union, those requirements must be interpreted strictly, so that their scope cannot be determined unilaterally by each Member State without any control by the institutions of the European Union (see, by analogy, judgment in Gaydarov , C‑430/10, EU:C:2011:749, paragraph 32 and the case-law cited).
49. Lastly, recital 6 in the preamble to Directive 2008/115 states that the Member States should ensure that the ending of the illegal stay of third-country nationals is carried out through a fair and transparent procedure. That recital also states that, according to general principles of EU law, decisions taken under that directive should be adopted on a case-by-case basis and be based on objective criteria, implying that consideration should go beyond the mere fact of an illegal stay (see judgment in Mahdi , C‑146/14 PPU, EU:C:2014:1320, paragraph 40). In particular, as the Court has already held, the principle of proportionality must be observed throughout all the stages of the return procedure established by that directive, including the stage relating to the return decision, in the context of which the Member State concerned must rule on the grant of a period for voluntary departure under Article 7 of that directive (see, to that effect, judgment in El Dridi , C‑61/11 PPU, EU:C:2011:68, paragraph 41).
50. Accordingly, it must be held that a Member State is required to assess the concept of ‘risk to public policy’, within the meaning of Article 7(4) of Directive 2008/115, on a case-by-case basis, in order to ascertain whether the personal conduct of the third-country national concerned poses a genuine and present risk to public policy. When it relies on general practice or any assumption in order to determine such a risk, without properly taking into account the national’s personal conduct and the risk that that conduct poses to public policy, a Member State fails to have regard to the requirements relating to an individual examination of the case concerned and to the principle of proportionality. It follows that the fact that a third-country national is suspected, or has been criminally convicted, of an act punishable as a criminal offence under national law cannot, in itself, justify a finding that that national poses a risk to public policy within the meaning of Article 7(4) of Directive 2008/115.
51. It must nevertheless be stated that, in the event of a criminal conviction, a Member State may find that there is a risk to public policy even where that conviction has not become final and absolute, where that conviction, taken together with other circumstances relating to the situation of the person concerned, justifies such a finding. The fact that a criminal conviction has not become final and absolute therefore does not preclude a Member State from relying on the derogation provided for in Article 7(4) of Directive 2008/115. As the Advocate General observed in point 65 of her Opinion, there is no basis in the wording of that directive for applying such a condition and it would run counter to the purpose pursued by Article 7 of that directive of laying down a specific time-limit for voluntary departure, since the time-limit laid down to that effect might be overrun in many cases by dint of the length of the national legal proceedings.
52. Moreover, the mere suspicion that a third-country national has committed an act punishable as a criminal offence under national law may, together with other factors relating to the case in question, be used as a basis for a finding that he poses a risk to public policy within the meaning of Article 7(4) of Directive 2008/115 since, as is apparent from paragraph 48 above, the Member States essentially retain the freedom to determine the requirements of the concept of public policy in accordance with their national needs and neither Article 7 nor any other provision of that directive permits the inference that a criminal conviction is necessary in that regard.
56. It must be observed at the outset that the factors relevant to the determination of whether there is a risk to public policy within the meaning of Article 7(4) of Directive 2008/115 are not materially the same as those which are relevant to the assessment of whether there is a risk of absconding within the meaning of that provision, the concept of ‘risk of absconding’ being distinct from that of ‘risk to public policy’ (as regards the concept of ‘risk of absconding’ within the meaning of that provision, see, in particular, judgment in Mahdi , C‑146/14 PPU, EU:C:2014:1320, paragraphs 65 to 74).
59. Moreover, a specific appraisal of the interests inherent in protecting the requirements of public policy within the meaning of Article 7(4) of Directive 2008/115 does not necessarily coincide with the appraisals which form the basis of a criminal conviction (see, by analogy, judgment in Bouchereau , 30/77, EU:C:1977:172, paragraph 27).
60. In those circumstances, it must be held that the concept of ‘risk to public policy’, as set out in A rticle 7(4) of that directive, presupposes, in any event, the existence, in addition to the perturbation of the social order which any infringement of the law involves, of a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society (see, by analogy, judgment in Gaydarov , C‑430/10, EU:C:2011:749, paragraph 33 and the case-law cited).
61. It follows that any factual or legal matter relating to the situation of the third-country national concerned which may throw light on whether his personal conduct poses such a threat is relevant to the assessment of that concept.
62. Consequently, the relevant matters in that regard, in the case of a third-country national who is suspected, or has been criminally convicted, of an act punishable as a criminal offence under national law, include the nature and the seriousness of that act and the time which has elapsed since it was committed.
69. Secondly, as the Court has already held, the right to be heard before the adoption of a return decision implies that the competent national authorities are under an obligation to enable the person concerned to express his point of view on the detailed arrangements for his return, such as the period allowed for departure and whether return is to be voluntary or coerced (see the judgment in Boudjlida , C‑249/13, EU:C:2014:2431, paragraph 51). Moreover, as is apparent from recitals 2, 6, 11 and 24 in the preamble to Directive 2008/115 and from Article 5 thereof, according to general principles of EU law, including the principle of proportionality, decisions taken under that directive must be adopted on a case-by-case basis and properly take into account the fundamental rights of the person concerned.