Request for a preliminary ruling from the Juzgado de lo Contencioso-Administrativo No 17 de Barcelona (Spain) lodged on 14 October 2019 — UD v Subdelegación del Gobierno en Barcelona

(Case C-746/19)

Language of the case: Spanish

Referring court

Juzgado de lo Contencioso-Administrativo No 17 de Barcelona

Parties to the main proceedings

Applicant: UD

Defendant: Subdelegación del Gobierno en Barcelona

Questions referred

Did the Spanish State correctly transpose Directive 2008/115 ¹ into national law (Ley Orgánica 4/2000 (Organic Law 4/2000) as amended by Ley Orgánica 2/2009 (Organic Law 2/2009)), in so far as it kept fines as the main penalty for illegal staying, with the penalty of expulsion being applied only where there are aggravating circumstances?

Can the Spanish State, pursuant to the principle that national law must be interpreted in conformity with EU law, require Directive 2008/115 to be applied directly, even where contrary to the provisions of its national legislation and where doing so aggravates the situation of the foreign national?

Can Articles 55(1) and 57(1) of Organic Law 4/2000 be interpreted in conformity with Directive 2008/115 whilst a rule remains in force under national Spanish law to the effect that the main penalty for illegal staying is a fine, or would such an interpretation be contra legem under national law?

Must national courts continue to apply the penalty of a fine as the main penalty and the penalty of expulsion in cases where there are aggravating circumstances or, conversely, are they strictly obliged to impose the penalty of expulsion in all cases, with the exception of the situations expressly excluded by Directive 2008/115?

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¹ 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).