B. v Centre public d'action sociale de Líège (CPAS).

• Jurisdiction: European Union
• Date: 30 September 2020
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (First Chamber)

30 September 2020 (*)

(Reference for a preliminary ruling – Area of freedom, security and justice – Directive 2008/115/EC – Return of illegally staying third-country nationals – Third-country national suffering from a serious illness – Return decision – Judicial remedy – Automatic suspensory effect – Conditions – Grant of social assistance – Articles 19 and 47 of the Charter of Fundamental Rights of the European Union)

In Case C‑233/19,

REQUEST for a preliminary ruling under Article 267 TFEU from the cour du travail de Liège (Higher Labour Court, Liège, Belgium), made by decision of 11 March 2019, received at the Court on 18 March 2019, in the proceedings

B.

v

Centre public d’action sociale de Liège,

THE COURT (First Chamber),

composed of J.-C. Bonichot, President of the Chamber, M. Safjan, L. Bay Larsen (Rapporteur), C. Toader and N. Jääskinen, Judges,

Advocate General: M. Szpunar,

Registrar: M. Krausenböck, Administrator,

having regard to the written procedure and further to the hearing on 22 January 2020,

after considering the observations submitted on behalf of:

– B., initially by D. Andrien and P. Ansay, avocats, then by D. Andrien, avocat,

– Centre public d’action sociale de Liège, initially by M. Delhaye and G. Dubois, avocats, and subsequently by M. Delhaye and J.‑P. Jacques, avocats,

– the Belgian Government, by P. Cottin, C. Pochet and C. Van Lul, acting as Agents, and by C. Piront and S. Matray, avocates,

– the Czech Government, by M. Smolek, acting as Agent,

– the Netherlands Government, by J. Langer and J.M. Hoogveld and by M.K Bulterman and H.S. Gijzen, acting as Agents,

– the European Commission, by A. Azema and C. Cattabriga, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 28 May 2020,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Articles 5 and 13 and Article 14(1)(b) of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ 2008 L 348, p. 98).

2 The request has been made in proceedings between B., a third-country national, and the centre public d’action sociale de Liège (Public Centre for Social Welfare, Liège, Belgium) (‘the CPAS’) concerning the CPAS’s decisions withdrawing B.’s entitlement to social assistance.

Legal context

EU law

3 Article 3(2) of Directive 2008/115 defines the concept of ‘illegal stay’ as ‘the presence, on the territory of a Member State, of a third-country national who does not fulfil, or no longer fulfils, the conditions of entry as set out in Article 5 of [Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ 2006 L 105, p. 1)] or other conditions for entry, stay or residence in that Member State’.

4 Article 5 of that directive states:

‘When implementing this Directive, Member States shall take due account of:

…

(c) the state of health of the third-country national concerned,

and respect the principle of non-refoulement.’

5 Article 9(1) of that directive is worded as follows:

‘Member States shall postpone removal:

…

(b) for as long as a suspensory effect is granted in accordance with Article 13(2).’

6 Article 13(1) and (2) of that directive provides:

‘1. The third-country national concerned shall be afforded an effective remedy to appeal against or seek review of decisions related to return, as referred to in Article 12(1), before a competent judicial or administrative authority or a competent body composed of members who are impartial and who enjoy safeguards of independence.

2. The authority or body mentioned in paragraph 1 shall have the power to review decisions related to return, as referred to in Article 12(1), including the possibility of temporarily suspending their enforcement, unless a temporary suspension is already applicable under national legislation.’

7 Article 14(1) of Directive 2008/115 provides:

‘Member States shall, with the exception of the situation covered in Articles 16 and 17, ensure that the following principles are taken into account as far as possible in relation to third-country nationals during the period for voluntary departure granted in accordance with Article 7 and during periods for which removal has been postponed in accordance with Article 9:

(a) family unity with family members present in their territory is maintained;

(b) emergency health care and essential treatment of illness are provided;

(c) minors are granted access to the basic education system subject to the length of their stay;

(d) special needs of vulnerable persons are taken into account.’

Belgian law

8 Article 57(2) of the loi organique du 8 juillet 1976 des centres publics d’action sociale (Basic Law of 8 July 1976 on public social welfare centres), in the version applicable to the dispute in the main proceedings, provides as follows:

‘By derogation from the other provisions of this law, the functions of the public social welfare centre shall be limited to:

1. the grant of urgent medical assistance, in respect of a foreign national residing illegally in the Kingdom;

…

A foreign national who has declared himself a refugee and has asked to be recognised as such will be deemed to be staying in the Kingdom illegally where his application for asylum has been rejected and an order to leave the territory has been served on him.

With the exception of urgent medical assistance, social assistance granted to a foreign national who was in receipt thereof at the time when an order to leave the territory was served on him will be stopped on the day when that foreign national actually leaves the territory and, at the latest, on the day when the period prescribed in the order to leave the territory expires.

…’

The dispute in the main proceedings and the question referred for a preliminary ruling

9 On 4 September 2015, B. made an application for asylum in Belgium. That application was rejected by the competent authority. On 27 April 2016, the Conseil du contentieux des étrangers (Council for asylum and immigration proceedings, Belgium) dismissed the appeal brought by B. against that decision.

10 On 26 September 2016, B. submitted an application for leave to reside on medical grounds based on the fact that she suffers from a number of serious illnesses.

11 As that application was declared admissible on 22 December 2016, B. became eligible for social assistance from the CPAS.

12 By decisions of 28 September 2017, of which B. was given notification on 23 October 2017, the application for leave to reside submitted by B. was rejected and the competent authority issued her with an order to leave Belgian territory.

13 On 28 November 2017, B. brought an action for annulment and suspension of those decisions before the Council for asylum and immigration proceedings.

14 By two decisions of 28 November 2017, the CPAS withdrew B.’s entitlement to social assistance with effect from 23 October 2017. On the other hand, she was granted emergency medical assistance on 1 November 2017.

15 On 28 December 2017, B. brought an action against the CPAS’s decisions withdrawing her entitlement to social assistance before the tribunal du travail de Liège (Labour Court, Liège, Belgium) and requested that court to reinstate her entitlement to social assistance with effect from 23 October 2017.

16 By judgment of 15 March 2018, the tribunal du travail de Liège (Labour Court, Liège) dismissed that action in so far as it concerned entitlement to social assistance.

17 On 16 April 2018, B. brought an appeal against that judgment before the cour du travail de Liège (Higher Labour Court, Liège, Belgium) (‘the national court’).

18 The national court notes that, in the light of the date of notification of the order to leave Belgian territory and following a new decision adopted by the CPAS, the period covered by the appeal is from 23 October 2017 to 31 January 2018. It points out that, during that period, B. did not have a residence permit.

19 After ruling out the possibility of granting B. social assistance under the Belgian social assistance legislation because it might be impossible for her to return on medical grounds, the national court states that the outcome of the main proceedings depends on the lessons to be drawn from the solution adopted by the Court in its judgment of 18 December 2014, Abdida (C‑562/13, EU:C:2014:2453).

20 It considers that it should uphold B.’s appeal if the action for annulment and suspension brought before the Council for asylum and immigration proceedings should be endowed with suspensive effect. The national court notes that, in accordance with Belgian law, that action does not have suspensive effect, but that it might be necessary to endow it with suspensive effect on the basis the judgment of 18 December 2014, Abdida (C‑562/13, EU:C:2014:2453). Nevertheless, the national court takes the view that it is difficult to determine under what conditions a social court must decide that such an action has suspensive effect, since the Belgian courts have adopted divergent decisions on that question.

21 In those circumstances, the cour du travail de Liège (Higher Labour Court, Liège) decided to stay the proceedings and to refer the following question to the...