Khaled Boudjlida v Préfet des Pyrénées-Atlantiques.
Date: 2014-12-11
29. It must first be observed that in Chapter III of Directive 2008/115, headed ‘Procedural safeguards’, that directive lays down the formal requirements which apply to return decisions, which must, inter alia, be issued in writing and must give reasons, and obliges the Member States to put in place effective remedies against those decisions. However, that directive does not specify whether, and under what conditions, observance of the right of third-country nationals to be heard must be ensured before the adoption of a return decision concerning them (see, to that effect, the judgment in Mukarubega , C‑166/13, EU:C:2014:2336, paragraphs 40 and 41).
30. Since the referring court referred in its first question to the right to be heard in relation to Article 41 of the Charter, it must be recalled that, in accordance with the Court’s settled case-law, observance of the rights of the defence is a fundamental principle of EU law, in which the right to be heard in all proceedings is inherent (the judgments in Kamino International Logistics , C‑129/13, EU:C:2014:2041, paragraph 28, and Mukarubega , EU:C:2014:2336, paragraph 42).
31. The right to be heard in all proceedings is now 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 of the Charter, which guarantees the right to good administration. Article 41(2) of the Charter provides that the right to good administration includes, inter alia, the right of every person to be heard before any individual measure which would affect him adversely is taken (the judgments in Kamino International Logistics , EU:C:2014:2041, paragraph 29, and Mukarubega , EU:C:2014:2336, paragraph 43).
32. As the Court stated in paragraph 67 of the judgment in YS and Others  (C‑141/12 and C‑372/12, EU:C:2014:2081), it is clear from the wording of Article 41 of the Charter that it is addressed not to the Member States but solely to the institutions, bodies, offices and agencies of the European Union (see, to that effect, the judgment in Cicala , C‑482/10, EU:C:2011:868, paragraph 28).
33. Consequently, an applicant for a resident permit cannot derive from Article 41(2)(a) of the Charter a right to be heard in all proceedings relating to his application (the judgment in Mukarubega , EU:C:2014:2336, paragraph 44).
34. Such a right is however inherent in respect for the rights of the defence, which is a general principle of EU law (the judgment in Mukarubega , EU:C:2014:2336, paragraph 45).
36. 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 (see, inter alia, the judgments in M. , C‑277/11, EU:C:2012:744, paragraph 87 and case-law cited, and Mukarubega , EU:C:2014:2336, paragraph 46).
37. In accordance with the Court’s case-law, the purpose of the rule that the addressee of an adverse decision must be placed in a position to submit his observations before that decision is adopted is to enable the competent authority effectively to take into account all relevant information. In order to ensure that the person concerned is in fact protected, the purpose of that rule is, inter alia, to enable that person to correct an error or submit such information relating to his or her personal circumstances as will argue in favour of the adoption or non-adoption of the decision, or in favour of its having a specific content (see the judgments in Sopropé , C‑349/07, EU:C:2008:746, paragraph 49, and Mukarubega , EU:C:2014:2336, paragraph 47).
38. That right also requires the authorities to pay due attention to the observations thus submitted by the person concerned, examining carefully and impartially all the relevant aspects of the individual case and giving a detailed statement of reasons for their decision (see the judgments in Technische Universität München , C‑269/90, EU:C:1991:438, paragraph 14, and Sopropé , EU:C:2008:746, paragraph 50); the obligation to state reasons for a decision which are sufficiently specific and concrete to allow the person concerned to understand why his application is being rejected is thus a corollary of the principle of respect for the rights of the defence (the judgment in M. , EU:C:2012:744, paragraph 88).
39. In accordance with the Court’s case-law, observance of the right to be heard is required even where the applicable legislation does not expressly provide for such a procedural requirement (see the judgments in Sopropé , EU:C:2008:746, paragraph 38; M. , EU:C:2012:744, paragraph 86; and G. and R. , C‑383/13 PPU, EU:C:2013:533, paragraph 32).
40. Thus, when the authorities of the Member States take measures which come within the scope of EU law, they are, as a rule, subject to the obligation to observe the rights of defence of addressees of decisions which significantly affect their interests (the judgment in G. and R. , EU:C:2013:533, paragraph 35).
41. Where neither the conditions under which observance of the rights of defence of illegally staying third-country nationals is to be ensured, nor the consequences of the infringement of those rights, are laid down by EU law, those conditions and consequences fall within the scope of national law, provided that the rules adopted to that effect are the same as those to which individuals in comparable situations under national law are subject (the principle of equivalence) and that they do not make it impossible in practice or excessively difficult to exercise the rights conferred by the European Union legal order (the principle of effectiveness) (the judgment in Mukarubega , EU:C:2014:2336, paragraph 51 and case-law cited).
42. Those requirements of equivalence and effectiveness embody the general obligation on the Member States to ensure respect for the rights of defence which an individual derives from EU law, in particular as regards the definition of detailed procedural rules (the judgment in Mukarubega , EU:C:2014:2336, paragraph 52 and case-law cited).
43. Nevertheless, it is also in accordance with the Court’s settled case-law that fundamental rights, such as respect for the rights of the defence, do not constitute unfettered prerogatives 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 involve, with regard to the objectives pursued, a disproportionate and intolerable interference which infringes upon the very substance of the rights guaranteed (the judgments in Alassini and Others , C‑317/08 to C‑320/08, EU:C:2010:146, paragraph 63; G. and R. , EU:C:2013:533, paragraph 33; and Texdata Software , C‑418/11, EU:C:2013:588, paragraph 84).
45. The detailed rules made to ensure that illegally staying third-country nationals are able to exercise their right to be heard prior to the adoption of a return decision must be assessed in the light of the objective of Directive 2008/115, namely, the effective return of illegally-staying third-country nationals to their countries of origin (see, to that effect, the judgment in Achughbabian , C‑329/11, EU:C:2011:807, paragraph 30).
46. In accordance with the Court’s settled case-law, as soon as it has been determined that a stay is illegal, the competent national authorities must, pursuant to Article 6(1) of Directive 2008/115, and without prejudice to the exceptions laid down in Article 6(2) to (5) thereof, adopt a return decision (see, to that effect, the judgments in El Dridi , C‑61/11 PPU, EU:C:2011:268, paragraph 35; Achughbabian , EU:C:2011:807, paragraph 31; and Mukarubega , EU:C:2014:2336, paragraph 57).
48. Next, as stated by the Advocate General in point 64 of his Opinion, pursuant to Article 5 of Directive 2008/115, headed ‘Non-refoulement, best interests of the child, family life and state of health’, when the Member States implement that directive, they must, first, take due account of the best interests of the child, family life and the state of health of the third-country national concerned and, second, respect the principle of non-refoulement.
49. It follows that, when the competent national authority is contemplating the adoption of a return decision, that authority must necessarily observe the obligations imposed by Article 5 of Directive 2008/115 and hear the person concerned on that subject.
51. Last, 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. It thus follows from, in particular, Article 7 of Directive 2008/115, paragraph (1) of which provides for an appropriate period of between seven and thirty days to leave national territory where departure is to be voluntary, that Member States must, where necessary, under Article 7(2) of the directive, extend the length of that period appropriately, taking into account the specific circumstances of the individual case, such as the length of stay, the existence of children attending school and other family and social links.
54. Next, in paragraph 60 of the judgment in Mukarubega  (EU:C:2014:2336), the Court held that, given that a return decision is closely linked, under Directive 2008/115, to the determination that a stay is illegal, the right to be heard cannot be interpreted as meaning that, where a competent national authority is contemplating the simultaneous adoption of a decision determining a stay to be illegal and a return decision, that authority should necessarily hear the person concerned so as to permit that person to present his/her point of view specifically on the return decision, since that person had the opportunity effectively to present his/her point of view on the question of whether the stay was illegal and whether there were grounds which could, under national law, entitle that authority to refrain from adopting a return decision.
59. It follows from the foregoing that the right to be heard before the adoption of a return decision must allow the competent national authority to investigate the matter in such a way as be able to adopt a decision in full knowledge of the facts and to state reasons for that decision adequately, so that, where appropriate, the person concerned can duly exercise his right to bring legal proceedings.