Subdelegación del Gobierno en Guipuzkoa - Extranjeria v Samir Zaizoune.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Bay Larsen
• ECLI: ECLI:EU:C:2015:260
• Date: 23 April 2015
• Docket Number: C-38/14
• Procedure Type: Reference for a preliminary ruling

JUDGMENT OF THE COURT (Fourth Chamber)

23 April 2015 ( *1 )

‛Reference for a preliminary ruling — Area of freedom, security and justice — Directive 2008/115/EC — Common standards and procedures for returning illegally staying third-country nationals — Articles 6(1) and 8(1) — National legislation providing, in the event of illegal staying, for either a fine or removal, depending on the circumstances’

In Case C‑38/14,

REQUEST for a preliminary ruling under Article 267 TFEU from the Tribunal Superior de Justicia de la Comunidad Autónoma del País Vasco (Spain), made by decision of 17 December 2013, received at the Court on 27 January 2014, in the proceedings

Subdelegación del Gobierno en Gipuzkoa — Extranjería

v

Samir Zaizoune,

THE COURT (Fourth Chamber),

composed of L. Bay Larsen (Rapporteur), President of the Chamber, K. Jürimäe, J. Malenovský, M. Safjan and A. Prechal, Judges,

Advocate General: Y. Bot,

Registrar: L. Carrasco Marco, Administrator,

having regard to the written procedure and further to the hearing on 9 December 2014,

after considering the observations submitted on behalf of:

— the Spanish Government, by A. Rubio González, acting as Agent,

— the Polish Government, by B. Majczyna, acting as Agent,

— the European Commission, by S. Pardo Quintillán and M. Condou-Durande, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 This request for a preliminary ruling concerns, in particular, the interpretation of Articles 6(1) and 8(1) 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 brought against Mr Zaizoune relating to his illegal stay in Spanish territory.

Legal context

Directive 2008/115

3 Recitals 2 to 4 in the preamble to Directive 2008/115 state: ‘(2) The Brussels European Council of 4 and 5 November 2004 called for the establishment of an effective removal and repatriation policy, based on common standards, for persons to be returned in a humane manner and with full respect for their fundamental rights and dignity. ... (4) Clear, transparent and fair rules need to be fixed to provide for an effective return policy as a necessary element of a well managed migration policy.’

4 Article 1 of Directive 2008/115, entitled ‘Subject matter’, provides: ‘This Directive sets out common standards and procedures to be applied in Member States for returning illegally staying third-country nationals, in accordance with fundamental rights as general principles of Community law as well as international law, including refugee protection and human rights obligations.’

5 Article 3 of Directive 2008/115 defines various terms for the purposes of that directive. Thus, point 4 of Article 3 of Directive 2008/115 defines the ‘return decision’ as ‘an administrative or judicial decision or act, stating or declaring the stay of a third-country national to be illegal and imposing or stating an obligation to return’.

6 Point 5 of Article 3 of Directive 2008/115 defines ‘removal’ as ‘the enforcement of the obligation to return, namely the physical transportation out of the Member State’.

7 Under the heading ‘More favourable provisions’, Article 4(2) and (3) of Directive 2008/115 provides: ‘2. This Directive shall be without prejudice to any provision which may be more favourable for the third-country national, laid down in the Community acquis relating to immigration and asylum. 3. This Directive shall be without prejudice to the right of the Member States to adopt or maintain provisions that are more favourable to persons to whom it applies provided that such provisions are compatible with this Directive.’

8 Article 6 of Directive 2008/115, entitled ‘Return decision’, provides: ‘1. Member States shall issue a return decision to any third-country national staying illegally on their territory, without prejudice to the exceptions referred to in paragraphs 2 to 5. 2. Third-country nationals staying illegally on the territory of a Member State and holding a valid residence permit or other authorisation offering a right to stay issued by another Member State shall be required to go to the territory of that other Member State immediately. In the event of non-compliance by the third-country national concerned with this requirement, or where the third-country national’s immediate departure is required for reasons of public policy or national security, paragraph 1 shall apply. 3. Member States may refrain from issuing a return decision to a third-country national staying illegally on their territory if the third-country national concerned is taken back by another Member State under bilateral agreements or arrangements existing on the date of entry into force of this Directive. In such a case the Member State which has taken back the third-country national concerned shall apply paragraph 1. 4. Member States may at any moment decide to grant an autonomous residence permit or other authorisation offering a right to stay for compassionate, humanitarian or other reasons to a third-country national staying illegally on their territory. In that event no return decision shall be issued. Where a return decision has already been issued, it shall be withdrawn or suspended for the duration of validity of the residence permit or other authorisation offering a right to stay. 5. If a third-country national staying illegally on the territory of a Member State is the subject of a pending procedure for renewing his or her residence permit or other authorisation offering a right to stay, that Member State shall consider refraining from issuing a return decision, until the pending procedure is finished, without prejudice to paragraph 6. ...’

9 Article 7(1) and (4) of Directive 2008/115, entitled ‘Voluntary departure’, provides: ‘1. A return decision shall provide for an appropriate period for voluntary departure of between seven and thirty days, without prejudice to the exceptions referred to in paragraphs 2 and 4. ... ... 4. If there is a risk of absconding, or if an application for a legal stay has been dismissed as manifestly unfounded or fraudulent, or if the person concerned poses a risk to public policy, public security or national security, Member States may refrain from granting a period for voluntary departure …’

10 Article 8(1) of Directive 2008/115, entitled ‘Removal’, provides: ‘Member States shall take all necessary measures to enforce the return decision if no period for voluntary departure has been granted in accordance with Article 7(4) or if the obligation to return has not been complied with within the period for voluntary departure granted in accordance with Article 7.’

Spanish law

11 Article 28(3)(c) of Basic Law 4/2000 on the rights and freedoms of aliens in Spain and their social integration (Ley Orgánica sobre derechos y libertades de los extranjeros en España y su integración social), of 11 January 2000 (BOE No 10 of 12 January 2000, p. 1139), in the version resulting from paragraph 28 of the sole article of the Basic Law 2/2009 (Ley Orgánica 2/2009, BOE No 299 of 12 December 2009), in force since 13 December 2009 (‘the Law on Aliens’) provides: ‘Departure [from Spanish territory] shall be compulsory in the following cases: ... (c) in the event of administrative refusal of applications to remain on Spanish territory submitted by an alien, or in the absence of authorisation to be in Spain.’

12 Under Article 51(2) of the Law on Aliens, the administrative offences set out in that law are classified, depending on their gravity, as either ‘minor’, ‘serious’ or ‘very serious’.

13 Article 53(1)(a) of the Law on Aliens defines as a serious offence ‘[b]eing unlawfully present on Spanish territory, on the ground that the person concerned has not obtained an extension of permission to stay or does not have a residence permit, or on the ground that the residence permit has expired more than three months previously, and that person has not applied for renewal of that permit within the period laid down by law’.

14 According to Article 55(1)(b) of the Law...