M. G. and N. R. v Staatssecretaris van Veiligheid en Justitie.
Date: 2013-09-10
23. The referring court justified that request by stating that the third-country nationals at issue in the proceedings before it are in detention and that their situation falls within the scope of Title V of the TFEU, relating to the policy area of freedom, security and justice. If the answer to the first question were to be in the affirmative, the detention measures would have to be lifted immediately. If the answer to the first question is in the negative, this means that there is in fact scope for the interests to be weighed up and the Raad van State should undertake such an exercise and thoroughly examine whether or not that weighing up of interests should lead to the lifting of the detention measures.
25. It must be observed, secondly, that, as the referring court points out, the claimants in the main proceedings are currently deprived of liberty, and the resolution of the main proceedings may result in that deprivation of liberty being immediately brought to an end.
29. In that respect, it must be noted that, in Chapter III thereof, entitled ‘Procedural Safeguards’, Directive 2008/115 lays down the formal requirements for decisions on removal, which are inter alia to be issued in writing and give reasons, and requires Member States to put in place effective remedies against those decisions. In Chapter IV, concerning detention for the purpose of removal, the directive provides inter alia, in Article 15(2), that detention is to be ordered by administrative or judicial authorities, in writing with reasons being given in fact and in law for the detention decision, and specifies the conditions of judicial review of that decision where it is ordered by administrative authorities. The final sub-paragraph of Article 15(2) of Directive 2008/115 provides, moreover, that the third-country national is to be released immediately if the detention is not lawful.
32. It is settled case-law that the rights of the defence, which include the right to be heard and the right to have access to the file, are among the fundamental rights forming an integral part of the European Union legal order and enshrined in the Charter of Fundamental Rights of the European Union (see, to that effect, Joined Cases C‑584/10 P, C‑593/10 P and C‑595/10 P Commission and Others  v Kadi [2013] ECR I‑0000, paragraphs 98 and 99 and the case-law cited). It is also true that observance of those rights is required even where the applicable legislation does not expressly provide for such a procedural requirement (see, to that effect, Case C‑277/11 M.  [2012] ECR I‑0000, paragraph 86 and the case-law cited).
33. However, the Court has held that fundamental rights, such as observance of 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 constitute, with regard to the objectives pursued, a disproportionate and intolerable interference which infringes upon the very substance of the rights guaranteed (Case C‑28/05 Dokter and Others [2006] ECR I‑5431, paragraph 75).
34. Further, the question whether there is an infringement of the rights of the defence must be examined in relation to the specific circumstances of each particular case (see, to that effect, Case C‑110/10 P Solvay  v Commission  [2011] ECR I‑10439, paragraph 63), including the nature of the act at issue, the context of its adoption and the legal rules governing the matter in question ( Commission  v Kadi , paragraph 102 and the case-law cited).
35. Thus, when they take measures which come within the scope of European Union law, the authorities of the Member States are, as a rule, subject to the obligation to observe the rights of the defence of addressees of decisions which significantly affect their interests. Where, as in the main proceedings, neither the conditions under which observance of the third-country nationals’ right to be heard is to be ensured, nor the consequences of the infringement of that right, are laid down by European Union law, those conditions and consequences are governed by 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 (principle of equivalence) and that they do not make it impossible in practice or excessively difficult to exercise the rights of defence conferred by the European Union legal order (principle of effectiveness) (see, to that effect, inter alia, Case C‑349/07 Sopropé [2008] ECR I‑10369, paragraph 38, and Case C‑452/09 Iaia and Others  [2011] ECR I‑4043, paragraph 16).
38. As regards the questions raised by the referring court, it must be noted that, according to European Union law, an infringement of the rights of the defence, in particular the right to be heard, results in annulment only if, had it not been for such an irregularity, the outcome of the procedure might have been different (see, to that effect, inter alia, Case C‑301/87 France  v Commission [1990] ECR I‑307, paragraph 31; Case C‑288/96 Germany  v Commission [2000] ECR I‑8237, paragraph 101; Case C‑141/08 Foshan Shunde Yongjian Housewares & Hardware  v Council  [2009] ECR I‑9147, paragraph 94; Case C‑96/11 P Storck  v OHIM [2012] ECR I‑0000, paragraph 80).
43. Second, the removal of any illegally staying third-country national is a matter of priority for the Member States, in accordance with the scheme of Directive 2008/115 (see, to that effect, Case C‑329/11 Achughbabian [2011] ECR I‑0000, paragraph 38).