LM v Centre public d'action sociale de Seraing.
Date: 2020-09-30
In that connection, it should be borne in mind that the system of cooperation established by Article 267 TFEU is based on a clear division of responsibilities between the national courts and the Court of Justice. In proceedings brought on the basis of that article, the interpretation of provisions of national law is a matter for the courts of the Member States, not for the Court of Justice, and the Court has no jurisdiction to rule on the compatibility of rules of national law with EU law. However, the Court does have jurisdiction to provide the national court with all the guidance as to the interpretation of EU law necessary to enable that court to determine whether those national rules are compatible with EU law (see, to that effect, judgments of 17 December 1981, Frans-Nederlandse Maatschappij voor Biologische Producten, 272/80, EU:C:1981:312, paragraph 9, and of 30 April 2020, CTT – Correios de Portugal, C‑661/18, EU:C:2020:335, paragraph 28).
Therefore, although the wording of the question referred for a preliminary ruling by the referring court asks the Court to rule on the compatibility of a provision of national law with EU law, there is nothing to prevent the Court from giving an answer that will be of use to the national court, by providing the latter with guidance as to the interpretation of EU law that will enable that court to rule itself on the compatibility of national law with EU law. Consequently, where the questions submitted concern the interpretation of EU law, the Court is in principle bound to give a ruling (see to that effect order of 30 April 2020, CTT – Correios de Portugal, C‑661/18, EU:C:2020:335, paragraph 29 and the case-law cited).
Furthermore, it should be noted that the question referred seeks, inter alia, to determine whether Article 14 of Directive 2008/115 is applicable to a third-country national such as the appellant in the main proceedings, even if he or she is not suffering from a serious illness. Therefore, the assessment of the arguments put forward by the Belgian Government that LM’s situation has no connection with EU law, is inextricably linked to the answer to be given to the question referred for a preliminary ruling and does not, accordingly, render that question inadmissible (see, by analogy, judgments of 17 January 2019, KPMG Baltics, C‑639/17, EU:C:2019:31, paragraph 11, and of 3 December 2019, Iccrea Banca, C‑414/18, EU:C:2019:1036,  paragraph 30).
Article 14 of Directive 2008/115 provides for certain safeguards pending return, in particular during periods for which removal has been postponed in accordance with Article 9 of that directive (judgment of 18 December 2014, Abdida, C‑562/13, EU:C:2014:2453, paragraph 55).
Although it is apparent from the order for reference that the Belgian authorities have not formally decided to postpone the removal of the appellant in the main proceedings, it is apparent from the case-law of the Court that the obligation to postpone removal laid down in Article 9(1)(b) of that directive applies in all situations in which a Member State is required to suspend enforcement of a return decision following the lodging of an appeal against that decision (see, to that effect, judgment of 18 December 2014, Abdida, C‑562/13, EU:C:2014:2453, paragraph 57).
It follows that the safeguards pending return referred to in Article 14 of Directive 2008/115 must be ensured in situations in which the Member State concerned is required to offer a third-country national an appeal with automatic suspensive effect against a return decision taken in respect of him or her (see, to that effect, judgment of 18 December 2014, Abdida, C‑562/13, EU:C:2014:2453, paragraphs 53 and 58).
In that regard, it should be recalled that, under Article 13(1) and (2) of Directive 2008/115, a third-country national must be afforded an effective remedy to appeal against or seek review of a decision ordering his or her return, but that that appeal does not necessarily have suspensive effect (see, to that effect, judgment of 18 December 2014, Abdida, C‑562/13, EU:C:2014:2453, paragraphs 43 and 44).
However, the characteristics of that remedy must be determined in accordance with Article 47 of the Charter, under which everyone whose rights and freedoms guaranteed by EU law are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in that article and with the principle of non-refoulement, guaranteed, inter alia, in Article 19(2) of the Charter and in Article 5 of Directive 2008/115 (see, to that effect, judgments of 18 December 2014, Abdida, C‑562/13, EU:C:2014:2453, paragraphs 45 and 46, and of 19 June 2018, Gnandi, C‑181/16, EU:C:2018:465, paragraphs 52 and 53).
From the foregoing considerations, the Court has concluded that, in order to ensure that the requirements arising from Article 47 of the Charter and the principle of non-refoulement are complied with in respect of the third-country national concerned, an appeal against a return decision must have automatic suspensive effect, since the enforcement of that decision may, inter alia, expose that national to a real risk of being subjected to treatment contrary to Article 19(2) of the Charter (see, to that effect, judgment of 19 June 2018, Gnandi, C‑181/16, EU:C:2018:465, paragraph 56).
That is so, in particular, where the enforcement of a return decision may expose a third-country national suffering from a serious illness to a serious risk of grave and irreversible deterioration in his or her state of health (see, to that effect, judgment of 18 December 2014, Abdida, C‑562/13, EU:C:2014:2453, paragraph 53).
However, it must be pointed out that the obligation to ensure, in certain cases, that a third-country national suffering from a serious illness has the benefit of a remedy with automatic suspensive effect against a return decision concerning that national seeks, ultimately, to ensure that that decision will not be enforced before the arguments relied on in support of that appeal are examined by a competent authority, since that enforcement entails a return to a third country in which that national is likely to suffer inhuman or degrading treatment (see, to that effect, judgment of 18 December 2014, Abdida, C‑562/13, EU:C:2014:2453, paragraphs 49 and 50).
Moreover, the Court stated, in paragraph 56 of the judgment of 19 June 2018, Gnandi (C‑181/16, EU:C:2018:465), that the obligation to provide, in certain cases, an appeal with automatic suspensive effect against a return decision was necessary, a fortiori, with regard to a possible removal decision, holding, consequently, that that obligation was not limited to a removal decision.
Compliance with those principles presupposes that the basic needs of a third-country national such as the appellant in the main proceedings are provided for, failing which, as the referring court points out and as the Advocate General has observed in point 93 of his Opinion, the appellant will not be able to remain with his adult child and provide her with the support she needs during the period in which she is permitted to remain temporarily in the territory of the Member State concerned (see, by analogy, judgment of 18 December 2014, Abdida, C‑562/13, EU:C:2014:2453, paragraph 60).
That obligation applies, however, only where that third-country national lacks the means to make such provision for himself or herself (see, to that effect, judgment of 18 December 2014, Abdida, C‑562/13, EU:C:2014:2453, paragraph 59).
Furthermore, it is for the Member States to determine the form in which such provision for the basic needs of the third-country national concerned is to be made (see, to that effect, judgment of 18 December 2014, Abdida, C‑562/13, EU:C:2014:2453, paragraph 61). Consequently, it cannot be ruled out that that provision may take the form of social assistance granted directly to an adult child, in so far as that assistance is adequate and sufficient to ensure that provision and to enable the parent of that adult child to provide him or her with the support that he or she needs, which it is, where appropriate, for the referring court to determine.