Josette Pecastaing v Belgian State.
Date: 1980-03-05
7 THE QUESTIONS AS A WHOLE ARE CONCERNED TO ESTABLISH THE OBLIGATIONS IMPOSED ON THE MEMBER STATES BY ARTICLES 8 AND 9 OF DIRECTIVE NO 64/221 WITH REGARD TO THE PROTECTION TO BE AFFORDED BY THE COURTS TO A PERSON AGAINST WHOM AN EXPULSION ORDER IS MADE . SPECIFICALLY , CLARIFICATION IS REQUESTED OF THE OBLIGATIONS OF THE MEMBER STATES UNDER THE DIRECTIVE WITH REGARD TO THE SUSPENSORY EFFECT OF APPLICATIONS AGAINST SUCH A MEASURE OF THE RIGHT TO OBTAIN A SUSPENSION OF SUCH MEASURES AND THE EVALUATION OF THE CONCEPT OF ' ' URGENCY ' '  APPEARING IN ARTICLE 9 OF THE DIRECTIVE . THE NATIONAL COURT , IN SUBMITTING THOSE QUESTIONS , REFERS ON THE ONE HAND TO CERTAIN ASPECTS OF THE CASE-LAW OF THE COURT RESULTING FROM THE JUDGMENT OF 8 APRIL 1976 IN CASE 48/75 , ROYER , ( 1976 ) ECR 497 ), AND ON THE OTHER TO THE CONCEPT OF ' ' A FAIR HEARING ' '  CONTAINED IN ARTICLE 6 OF THE EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS .

THE INTERPRETATION OF ARTICLE 8 OF THE DIRECTIVE
9 ACCORDING TO ARTICLE 8 : ' ' THE PERSON CONCERNED SHALL HAVE THE SAME LEGAL REMEDIES IN RESPECT OF ANY DECISION CONCERNING ENTRY , OR REFUSING THE ISSUE OR RENEWAL OF A RESIDENCE PERMIT , OR ORDERING EXPULSION FROM THE TERRITORY , AS ARE AVAILABLE TO NATIONALS OF THE STATE CONCERNED IN RESPECT OF ACTS OF THE ADMINISTRATION . ' '
10 THAT PROVISION DEFINES THE DECISIONS REFERRED TO BY THE DIRECTIVE AS ' ' ACTS OF THE ADMINISTRATION ' '  AND IMPOSES UPON THE MEMBER STATES THE OBLIGATION TO MAKE AVAILABLE TO ANY PERSON AFFECTED BY SUCH ACTS THE SAME LEGAL REMEDIES AS ARE AVAILABLE TO NATIONALS IN RESPECT OF ACTS OF THE ADMINISTRATION . ACCORDINGLY A MEMBER STATE CANNOT , WITHOUT BEING IN BREACH OF THE OBLIGATION IMPOSED BY ARTICLE 8 , RENDER THE RIGHT OF APPEAL FOR PERSONS COVERED BY THE DIRECTIVE CONDITIONAL ON PARTICULAR REQUIREMENTS AS TO FORM OR PROCEDURE WHICH ARE LESS FAVOURABLE THAN THOSE PERTAINING TO REMEDIES AVAILABLE TO NATIONALS IN RESPECT OF ACTS OF THE ADMINISTRATION . A REMEDY MUST THUS BE AVAILABLE TO ANY PERSON COVERED BY THE DIRECTIVE AGAINST ANY DECISION WHICH MAY LEAD TO EXPULSION BEFORE THE DECISION IS EXECUTED .
11 ARTICLE 8 DOES NOT SPECIFY THE COURTS FROM WHICH SUCH REMEDIES MAY BE SOUGHT . THE RESOLUTION OF THAT POINT DEPENDS UPON THE ORGANIZATION OF THE COURTS OF EACH MEMBER STATE . IT FOLLOWS THAT IF , IN A MEMBER STATE , REMEDIES AGAINST ACTS OF THE ADMINISTRATION MAY BE SOUGHT FROM THE ORDINARY COURTS , THE PERSONS COVERED BY DIRECTIVE NO 64/221 MUST BE TREATED IN THE SAME WAY AS NATIONALS WITH REGARD TO RIGHTS OF APPEAL TO SUCH COURTS IN RESPECT OF ACTS OF THE ADMINISTRATION . THIS MEANS THAT IF , IN A MEMBER STATE , THE ADMINSTRATIVE COURTS WERE NOT EMPOWERED TO GRANT A STAY OF EXECUTION OF AN ADMINISTRATIVE DECISION BUT SUCH POWER WAS RECOGNIZED TO THE ORDINARY COURTS THAT STATE WOULD BE OBLIGED TO PERMIT PERSONS COVERED BY THE DIRECTIVE TO APPLY FOR A STAY OF EXECUTION TO SUCH COURTS ON THE SAME CONDITIONS AS NATIONALS OF THAT STATE . IT MUST NEVERTHELESS BE EMPHASIZED THAT SUCH RIGHTS DEPEND ESSENTIALLY ON THE ORGANIZATION OF THE COURTS AND THE DIVISION OF THE JURISDICTION OF JUDICIAL BODIES IN THE VARIOUS MEMBER STATES SINCE THE ONLY OBLIGATION IMPOSED UPON THE MEMBER STATES BY ARTICLE 8 IS TO GRANT TO PERSONS PROTECTED UNDER COMMUNITY LAW RIGHTS OF APPEAL WHICH ARE NOT LESS FAVOURABLE THAN THOSE AVAILABLE TO NATIONALS OF THE STATE CONCERNED AGAINST ACTS OF THE ADMINISTRATION .
12 ON THE OTHER HAND ARTICLE 8 CONTAINS NO SPECIFIC OBLIGATION CONCERNING ANY SUSPENSORY EFFECT OF APPLICATIONS AVAILABLE TO PERSONS COVERED BY THE DIRECTIVE . IF THAT PROVISION REQUIRES THAT THE PERSON CONCERNED SHOULD BE ABLE TO APPEAL AGAINST THE MEASURE AFFECTING HIM IT MUST BE INFERRED , AS THE COURT STATED IN ITS JUDGMENT IN THE ROYER CASE ( PARAGRAPH 60 OF THE DECISION ), THAT THE DECISION ORDERING EXPLUSION MAY NOT BE EXECUTED - SAVE IN CASES OF URGENCY - BEFORE THE PARTY CONCERNED IS ABLE TO COMPLETE THE FORMALITIES NECESSARY TO AVAIL HIMSELF OF THE REMEDY . HOWEVER , IT CANNOT BE INFERRED FROM THAT PROVISION THAT THE PERSON CONCERNED IS ENTITLED TO REMAIN ON THE TERRITORY OF THE STATE CONCERNED THROUGHOUT THE PROCEEDINGS INITIATED BY HIM . SUCH AN INTERPRETATION , WHICH WOULD ENABLE THE PERSON CONCERNED UNILATERALLY , BY LODGING AN APPLICATION , TO SUSPEND THE MEASURE AFFECTING HIM , IS INCOMPATIBLE WITH THE OBJECTIVE OF THE DIRECTIVE WHICH IS TO RECONCILE THE REQUIREMENTS OF PUBLIC POLICY , PUBLIC SECURITY AND PUBLIC HEALTH WITH THE GUARANTEES WHICH MUST BE PROVIDED FOR THE PERSONS AFFECTED BY SUCH MEASURES .
13 ACCORDINGLY , THE REPLY TO BE GIVEN TO THE QUESTIONS SUBMITTED MUST BE THAT ARTICLE 8 COVERS ALL THE REMEDIES AVAILABLE IN A MEMBER STATE IN RESPECT OF ACTS OF THE ADMINISTRATION WITHIN THE FRAMEWORK OF THE JUDICIAL SYSTEM AND THE DIVISION OF JURISDICTION BETWEEN JUDICIAL BODIES IN THE STATE IN QUESTION . ARTICLE 8 IMPOSES ON THE MEMBER STATES THE OBLIGATION TO PROVIDE FOR THE PERSONS COVERED BY THE DIRECTIVE PROTECTION BY THE COURTS WHICH IS NOT LESS THAN THAT WHICH THEY MAKE AVAILABLE TO THEIR OWN NATIONALS AS REGARDS APPEALS AGAINST ACTS OF THE ADMINISTRATION INCLUDING , IF APPROPRIATE , THE SUSPENSION OF THE ACTS APPEALED AGAINST . ON THE OTHER HAND THERE MAY NOT BE INFERRED FROM ARTICLE 8 AN OBLIGATION FOR THE MEMBER STATES TO PERMIT AN ALIEN TO REMAIN IN THEIR TERRITORY FOR THE DURATION OF THE PROCEEDINGS , SO LONG AS HE IS ABLE NEVERTHELESS TO OBTAIN A FAIR HEARING AND TO PRESENT HIS DEFENCE IN FULL .

THE INTERPRETATION OF ARTICLE 9 OF DIRECTIVE NO 64/221
15 THE PROVISIONS OF ARTICLE 9 OF DIRECTIVE NO 64/221 ARE COMPLEMENTARY TO THOSE OF ARTICLE 8 . THEIR OBJECT IS TO ENSURE A MINIMUM PROCEDURAL SAFEGUARD FOR PERSONS AFFECTED BY ONE OF THE MEASURES REFERRED TO IN THE THREE SPECIFIC CASES SET OUT AS FOLLOWS IN ARTICLE 9 ( 1 ): ' ' WHERE THERE IS NO RIGHT OF APPEAL TO A COURT OF LAW , OR WHERE SUCH APPEAL MAY BE ONLY IN RESPECT OF THE LEGAL VALIDITY OF THE DECISION , OR WHERE THE APPEAL CANNOT HAVE SUSPENSORY EFFECT ' ' . IN THE FIRST CASE MENTIONED A COMPLAINT TO A ' ' COMPETENT AUTHORITY ' '  WHICH IS NOT THE SAME AS THAT EMPOWERED TO TAKE THE DECISION IS INTENDED TO COMPENSATE FOR THE ABSENCE OF ANY RIGHT OF APPEAL TO THE COURTS . IN THE SECOND CASE THE INTERVENTION OF THE COMPETENT AUTHORITY IS INTENDED TO ENABLE A DETAILED EXAMINATION TO BE MADE OF THE SITUATION OF THE PERSON CONCERNED , INCLUDING THE APPROPRIATENESS OF THE MEASURE CONTEMPLATED , BEFORE THE DECISION IS FINALLY TAKEN . IN THE THIRD CASE THAT PROCEDURE IS INTENDED TO PERMIT THE PERSON CONCERNED TO REQUEST AND TO OBTAIN , IF APPROPRIATE , A STAY OF THE EXECUTION OF THE MEASURE ENVISAGED IN SUCH A WAY AS TO COMPENSATE FOR THE ABSENCE OF A RIGHT TO OBTAIN A STAY OF EXECUTION FROM THE COURTS .
17 WITH REGARD TO THE INTERPRETATION OF ARTICLE 9 CONSIDERED IN ISOLATION , IT SHOULD BE RECALLED , AS THE COURT OF JUSTICE HAD OCCASION TO POINT OUT IN ITS JUDGMENT IN THE ROYER CASE ( PARAGRAPH 59 OF THE DECISION ), THAT THE PROCEDURE OF APPEAL TO A ' ' COMPETENT AUTHORITY ' '  REFERRED TO IN THAT ARTICLE MUST PRECEDE THE DECISION ORDERING EXPLUSION , SAVE IN CASES OF URGENCY . IN PARTICULAR IF A MEMBER STATE HAS APPLIED ARTICLE 9 IN ORDER TO COMPENSATE FOR THE FACT THAT THE APPEALS TO THE COURTS WHICH ARE AVAILABLE DO NOT CARRY SUSPENSORY EFFECT THAT PROVISION WOULD BE RENDERED NUGATORY IF , ALWAYS SAVE IN CASES OF URGENCY , EXECUTION OF THE EXPULSION ORDER CONTEMPLATED WERE NOT SUSPENDED UNTIL THAT AUTHORITY HAS GIVEN ITS OPINION ( ROYER CASE , PARAGRAPH 61 OF THE DECISION ).
18 IT FOLLOWS FROM ARTICLE 9 THEREFORE THAT AS SOON AS THE OPINION IN QUESTION HAS BEEN OBTAINED AND NOTIFIED TO THE PERSON CONCERNED AN EXPULSION ORDER MAY BE EXECUTED IMMEDIATELY , SUBJECT ALWAYS TO THE RIGHT OF THAT PERSON TO STAY ON THE TERRITORY FOR THE TIME NECESSARY TO AVAIL HIMSELF OF THE REMEDIES ACCORDED TO HIM UNDER ARTICLE 8 OF THE DIRECTIVE .
20 THE REPLY TO THE QUESTIONS SUBMITTED MUST THUS BE THAT THE PROCEDURE CONCERNING THE CONSIDERATION OF THE DECISION AND CONCERNING THE OPINION REFERRED TO IN ARTICLE 9 WHICH IS INTENDED TO MITIGATE THE EFFECT OF DEFICIENCIES IN THE REMEDIES REFERRED TO IN ARTICLE 8 , IS NOT INTENDED TO CONFER UPON THE COURTS ADDITIONAL POWERS CONCERNING SUSPENSION OF THE MEASURES REFERRED TO BY THE DIRECTIVE OR TO EMPOWER THEM TO REVIEW THE URGENCY OF AN EXPULSION ORDER . THE PERFORMANCE OF THOSE DUTIES BY THE NATIONAL COURTS IS GOVERNED BY ARTICLE 8 OF THE DIRECTIVE . THE SCOPE OF THAT PROVISION NEVERTHELESS MAY NOT BE RESTRICTED BY MEASURES TAKEN BY A MEMBER STATE UNDER ARTICLE 9 OF THE DIRECTIVE .

THE REQUIREMENT OF A ' ' FAIR HEARING ' '  ( ARTICLE 6 OF THE EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS )