Sophie Mukarubega v Préfet de police and Préfet de la Seine-Saint-Denis.
Date: 2014-11-05
40. In Chapter III of Directive 2008/115, headed ‘Procedural Safeguards’, the directive lays down the formal requirements for return decisions, and, if issued, entry-ban decisions and 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 (see, as regards decisions on removal, judgment in G. and R. , C‑383/13 PPU, EU:C:2013:533, paragraph 29).
41. However, it is clear that although the authors of Directive 2008/115 thus intended to provide a detailed framework for the safeguards granted to the third-country nationals concerned as regards return decisions, entry-ban decisions and decisions on removal, they did not, however, specify whether, and under what conditions, observance of the right to be heard of those third-country nationals was to be ensured, nor did they specify the consequences of an infringement of that right (see, to that effect, judgment in G. and R. , EU:C:2013:533, paragraph 31).
42. 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 (judgments in Sopropé , C‑349/07, EU:C:2008:746, paragraphs 33 and 36; M. , C‑277/11, EU:C:2012:744, paragraphs 81 and 82; and Kamino International Logistics , C‑129/13, EU:C:2014:2041, paragraph 28).
43. 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 (judgments in M. , EU:C:2012:744, paragraphs 82 and 83, and Kamino International Logistics , EU:C:2014:2041, paragraph 29).
44. 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, judgment in Cicala , C‑482/10, EU:C:2011:868, paragraph 28). 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.
45. Such a right is however inherent in respect for the rights of the defence, which is a general principle of EU law.
46. 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, judgment in M. , EU:C:2012:744, paragraph 87 and case-law cited).
47. 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, to that effect, judgment in Sopropé , EU:C:2008:746, paragraph 49).
48. 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 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 (judgment in M. , EU:C:2012:744, paragraph 88).
49. 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 judgments in Sopropé , EU:C:2008:746, paragraph 38; M. , EU:C:2012:744, paragraph 86; and G. and R. , EU:C:2013:533, paragraph 32).
50. 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 the defence of addressees of decisions which significantly affect their interests (judgment in G. and R. , EU:C:2013:533, paragraph 35).
51. Where, as in the main proceedings, 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) (see, to that effect, inter alia, judgments in Sopropé , EU:C:2008:746, paragraph 38; Iaia and Others , C‑452/09, EU:C:2011:323, paragraph 16; and G. and R. , EU:C:2013:533, paragraph 35).
52. 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 (see, to that effect, judgment in Alassini and Others , C‑317/08 to C‑320/08, EU:C:2010:146, paragraph 49).
54. 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, judgment in Solvay v Commission , C‑110/10 P, EU:C:2011:687, paragraph 63), including the nature of the act at issue, the context of its adoption and the legal rules governing the matter in question (see judgments in Commission and Others  v Kadi , C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 102 and case-law cited, and G. and R. , EU:C:2013:533, paragraph 34).
55. The Member States must therefore take account of all the Court’s case-law concerning observance of the rights of the defence in conjunction with the scheme of Directive 2008/115 when they determine the conditions under which observance of the right to be heard of illegally-staying third-country nationals is to be ensured and when they act upon an infringement of that right (see, to that effect, judgment in G. and R. , EU:C:2013:533, paragraph 37).
57. However, as regards the scheme of Directive 2008/115 which governs the return decisions at issue in the main proceedings, it must be observed that, as soon as it has been determined that a stay is illegal, the competent national authorities must, pursuant to Article 6(1) of that directive and without prejudice to the exceptions laid down in Article 6(2) to (5), adopt a return decision (see, to that effect, judgments in El Dridi , EU:C:2011:268, paragraph 35, and Achughbabian , C‑329/11, EU:C:2011:807, paragraph 31).
60. Thus, 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 the 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.
61. None the less, as regards the administrative procedure to be followed, according to recital 6 in the preamble to Directive 2008/115, Member States should ensure that the ending of the illegal stay of third country nationals is carried out within a fair and transparent procedure (judgment in Mahdi , C‑146/14 PPU, EU:C:2014:1320, paragraph 40).
71. In that regard, as the Advocate General observed in point 72 of his Opinion, it must be stated that the right to be heard before the adoption of a return decision cannot be used in order to re-open indefinitely the administrative procedure, for the reason that the balance between the fundamental right of the person concerned to be heard before the adoption of a decision adversely affecting that person and the obligation of the Member States to combat illegal immigration must be maintained.