Subdelegación del Gobierno en Guipuzkoa - Extranjeria v Samir Zaizoune.
Date: 2015-04-23
25. It should be observed as a preliminary point that, in the context of the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court may have to reformulate the questions referred to it. The Court has a duty to interpret all provisions of EU law which national courts need in order to decide the actions pending before them, even if those provisions are not expressly indicated in the questions referred to the Court of Justice by those courts (judgment in eco cosmetics and Raiffeisenbank St. Georgen , C‑119/13 and C‑120/13, EU:C:2014:2144, paragraph 32 and the case-law cited).
26. Consequently, even if, formally, the questions referred concern the interpretation of Articles 4(2), 4(3) and 6(1) of Directive 2008/115, that does not prevent this Court from providing the referring court with all the elements of interpretation of EU law that may be of assistance in adjudicating in the case in the main proceedings. It is, in this regard, for the Court to extract from all the information provided by the national court, in particular from the grounds of the decisions to make the reference, the points of EU law which require interpretation in view of the subject-matter of the dispute (see judgment in eco cosmetics and Raiffeisenbank St. Georgen , C‑119/13 and C‑120/13, EU:C:2014:2144, paragraph 33 and the case-law cited).
31. As is clear from paragraph 35 of the judgment in El Dridi  (C‑61/11 PPU, EU:C:2011:268), Article 6(1) of Directive 2008/115 provides, first of all, principally, for an obligation for Member States to issue a return decision against any third-country national staying illegally on their territory.
32. Once it has been established that the stay is illegal, the national authorities must, pursuant to Article 6(1) of that directive and without prejudice to the exceptions laid down by Article 6(2) to (5) thereof, adopt a return decision (judgment in Achughbabian , C‑329/11, EU:C:2011:807, paragraph 31). In that regard, nothing in the documents before the Court suggests that Mr Zaizoune finds himself in any of the situations mentioned in those paragraphs.
33. It must also be noted that, where a return decision has been issued against a third-country national, but that third-country national has not complied with the obligation to return, whether within the period for voluntary departure, or if no period is granted to that effect, Article 8(1) of Directive 2008/115 requires Member States, in order to ensure the effectiveness of return procedures, to take all measures necessary to carry out the removal of the person concerned, namely, pursuant to Article 3, point 5, of that directive, the physical transportation of the person concerned out of that Member State (see, to that effect, judgment in Achughbabian , C‑329/11, EU:C:2011:807, paragraph 35).
34. It must be recalled, moreover, that, as follows both from the duty of sincere cooperation on the Member States and the requirements of effectiveness referred to, in particular, in recital 4 in the preamble to Directive 2008/115, the obligation imposed on the Member States by Article 8 of that directive, in the cases set out in Article 8(1), to carry out the removal of the third-country national, must be fulfilled as soon as possible (see judgment in Sagor , C‑430/11, EU:C:2012:777, paragraph 43 and the case-law cited).
39. In that regard, it must be borne in mind that Member States must not apply rules which are liable to jeopardise the achievement of the objectives pursued by a directive and, therefore, deprive it of its effectiveness (see, to that effect, judgment in Achughbabian , C‑329/11, EU:C:2011:807, paragraph 33 and the case-law cited).
40. It follows that national legislation such as that at issue in the main proceedings is likely to thwart the application of the common standards and procedures established by Directive 2008/115 and, as the case may be, delay the return, thereby undermining the effectiveness of that directive (see, to that effect, judgment in Achughbabian , C‑329/11, EU:C:2011:807, paragraph 39).