Opinion of Advocate General Rantos delivered on 10 February 2021.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2021:104
• Date: 10 February 2021
• Celex Number: 62019CC0719
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

RANTOS

delivered on 10 February 2021 (1)

Case C‑719/19

FS

v

Staatssecretaris van Justitie en Veiligheid

(Request for a preliminary ruling from the Raad van State (Council of State, Netherlands))

(Reference for a preliminary ruling – Citizenship of the Union – Article 21 TFEU – Right of citizens of the Union and their family members to move and reside freely within the territory of the Member States – Directive 2004/38/EC – Article 15 – Decision restricting free movement on grounds other than public policy, public security or public health – Illegal residence of a Union citizen in the host Member State – Expulsion decision – Physical departure of the Union citizen from the host Member State – Temporal effects of the expulsion decision – Articles 5, 6 and 7 – Possibility of the Union citizen enjoying a new right of entry or of residence on his or her return to the host Member State)

I. Introduction

1. Can a Union citizen, who has lost the right to reside in the territory of a Member State of which he or she is not a national and who, on that ground, has been the subject of an expulsion decision pursuant to Article 15(1) of Directive 2004/38/EC (2) (‘the Residence Directive’), rely on a new right of residence under that directive in the event of his or her immediate return to that Member State after leaving its territory in accordance with that expulsion decision? If not, for how long must that citizen reside outside the territory of the Member State before being able to obtain a new right of residence in that same Member State?

2. Those are the questions raised by the present case, which will lead the Court to specify when the legal effects of an expulsion decision taken ‘on grounds other than public policy, public security or public health’ within the meaning of Article 15(1) of the Residence Directive are exhausted and under what circumstances a Union citizen can, therefore, obtain a right of residence in the host Member State again.

3. Those questions will enable the Court to rule, for the first time, both on the temporal effects of such an expulsion decision and, more generally, on the relationship between Article 15, on the one hand, and Article 5 (right of entry), Article 6 (right of residence for up to three months) and, lastly, Article 7 of that directive (right of residence for more than three months), on the other hand. (3)

4. There are no clear answers to those questions. First, the questions highlight the delicate balance to be struck between two rights that are not easily reconcilable: the right of Union citizens to reside freely within the territory of the Union and the right of the Member States to expel from their territory persons who do not have the right to reside there. Second, those same questions fall within the specific legal context of the absence of controls at the internal borders of the Union, (4) which is difficult to reconcile with the very concept of the ‘expulsion’ of a Union citizen from one Member State to another.

5. In this Opinion, I will set out the reasons that support my proposed answers, which may be summarised as follows:

– the legal effects of an expulsion decision taken on the basis of Article 15(1) of the Residence Directive cannot be extinguished merely by the Union citizen physically leaving the territory of the host Member State, because this would undermine the practical effect of that directive;

– the proposal consisting in prolonging, systematically, the effects of an expulsion decision for a certain period after the physical departure of the person concerned, in particular for at least three months, would impose an unjustified restriction on the right of residence, as enshrined in Article 21 TFEU and given concrete expression in that directive; and

– it is for the authorities of the host Member State to assess the temporal effects of expulsion decisions taken on the basis of Article 15 of the Residence Directive, and a fortiori the possibility of relying on a new right of residence, based on an in-depth examination of the situation of the person concerned, taking into account all the relevant circumstances and, in particular, the existence of an actual, genuine purpose for his or her residence in that Member State and the risk of that person being an unreasonable burden on the social assistance system of the Member State.

II. Legal context

A. EU law

6. Recital 16 of the Residence Directive states that ‘as long as the beneficiaries of the right of residence do not become an unreasonable burden on the social assistance system of the host Member State they should not be expelled. Therefore, an expulsion measure should not be the automatic consequence of recourse to the social assistance system. … In no case should an expulsion measure be adopted against workers, self-employed persons or job-seekers as defined by the Court of Justice save on grounds of public policy or public security’.

7. Article 5(1) of that directive affords, inter alia, to Union citizens with a valid identity card or passport a right of entry to the territory of the Member States.

8. Article 6(1) of the directive affords Union citizens a right of residence in the territory of another Member State for a period of up to three months ‘without any conditions or any formalities other than’ that of holding a valid identity card or passport.

9. Article 7(1) of the same directive affords Union citizens a right of residence in the territory of another Member State for a period of longer than three months if they: (a) are workers or self-employed persons in the host Member State, or (b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of that Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State, or (c) are students and satisfy, in essence, the same conditions as those set out in point (b).

10. Article 14(1) and (2) of the Residence Directive states that Union citizens and their family members are to have the right of residence provided for in Article 6 of that directive as long as they do not become an unreasonable burden on the social assistance system of the host Member State, and the right of residence provided for in Articles 7, 12 and 13 of the directive as long as they meet the conditions set out therein. By way of derogation from those provisions, Article 14(4) of the same directive provides that an expulsion measure may in no case be adopted against those Union citizens if they are (a) workers or self-employed persons, or (b) if they entered the territory of that Member State in order to seek employment.

11. Article 15 of the Residence Directive, which is entitled ‘Procedural safeguards’, provides, in paragraph 1 thereof, that ‘the procedures provided for by Articles 30 and 31 shall apply by analogy to all decisions restricting free movement of Union citizens and their family members on grounds other than public policy, public security or public health’. Under paragraph 2 of that article, ‘expiry of the identity card or passport on the basis of which the person concerned entered the host Member State … shall not constitute a ground for expulsion from the host Member State’. Lastly, paragraph 3 of the article provides that ‘the host Member State may not impose a ban on entry in the context of an expulsion decision to which paragraph 1 applies’.

12. Article 30(3) of that directive provides that ‘the notification [of any decision taken under Article 27(1) of the Residence Directive] shall specify …, where applicable, the time allowed for the person to leave the territory of the Member State. Save in duly substantiated cases of urgency, the time allowed to leave the territory shall not be less than one month from the date of notification’.

B. Netherlands law

13. The Vreemdelingenwet 2000 (Law on Foreign Nationals 2000) of 23 November 2000 (Stb. 2000, No 495) provides, in Articles 61 and 62 thereof, that a foreign national who is not, or who is no longer, legally resident must leave the Netherlands on his or her own initiative within a period of four weeks from the end of his or her legal residence. Article 63(1) of that law provides that a foreign national who is not legally resident and who has not left the Netherlands on his or her own initiative within that period may be expelled.

III. The dispute in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court

14. FS, the appellant in the main proceedings, is a Polish citizen who, on 9 November 2017, was registered in the Non Residents’ Register of the Netherlands. (5)

15. By decision of 1 June 2018, the Staatssecretaris van Justitie en Veiligheid (State Secretary for Justice and Security, Netherlands; ‘the State Secretary’) found that FS was not legally resident because he no longer satisfied the conditions laid down in Article 7 of the Residence Directive relating to the right of residence for more than three months, (6) and ordered him to leave the territory of the Netherlands. In that regard, account was taken of the fact that FS had been fairly regularly arrested by the police on suspicion of shoplifting and pick-pocketing.

16. By decision of 25 September 2018, the State Secretary declared the objection raised by FS against the decision of 1 June 2018 to be unfounded. On the one hand, the State Secretary acknowledged that FS’s conduct did not represent a danger for public policy or public security within the meaning of Article 27 of the Residence Directive, but, on the other hand, set a four-week deadline for voluntary departure, after which FS could be expelled by virtue of his illegal residence. The referring court explains that that expulsion decision constitutes a ‘decision restricting free movement of Union citizens’ within the meaning of Article 15(1) of that directive...