Case C‑38/14

Subdelegación del Gobierno en Gipuzkoa — Extranjería

v

Samir Zaizoune

(Request for a preliminary ruling from the Tribunal Superior de Justicia de la Comunidad Autónoma del País Vasco)

(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)

Summary — Judgment of the Court (Fourth Chamber), 23 April 2015

1.        Questions referred for a preliminary ruling — Jurisdiction of the Court — Identification of the relevant aspects of EU law — Reformulation of the questions

(Art. 267 TFEU)

2.        Border controls, asylum and immigration — Immigration policy — Return of illegally staying third-country nationals — National legislation providing, in the event of illegal staying, for either a fine or removal, depending on the circumstances — Unlawful

(European Parliament and Council Directive 2008/37, Arts 6(1) and 8(1))

1.        See the text of the decision.

(see paras 25-28)

2.        Directive 2008/115 on common standards and procedures in Member States for returning illegally staying third-country nationals, in particular, Articles 6(1) and Article 8(1), read in conjunction with Article 4(2) and (3), must be interpreted as precluding legislation of a Member State which provides, in the event of third-country nationals illegally staying in the territory of that Member State, depending on the circumstances, for either a fine or removal, since the two measures are mutually exclusive.

In that regard, the objective of Directive 2008/115, as is apparent from recitals 2 and 4 in the preamble thereto, is the establishment of an effective removal and repatriation policy. Article 1 of that directive sets out the common standards and procedures to be applied by each Member State for returning illegally staying third-country nationals.

Moreover, Article 6(1) of the directive provides, principally, for an obligation for Member States to issue a return decision against any third-country national staying illegally on their territory. In addition, where a return decision has been issued against a third-country national, but that person has not complied with the obligation to return, whether within the period for voluntary departure, or if no period is granted to that effect, Article 8(1) of Directive 2008/115 requires Member States, in order to ensure the effectiveness of return procedures, to take all measures necessary to carry out the removal of the person concerned, namely, pursuant to Article 3, point 5, of that directive, the physical transportation of the person concerned out of that Member State.

It follows that such national legislation does not meet the clear requirements of Articles 6(1) and 8(1) of Directive 2008/115. The Member States’ right to derogate, pursuant to Article 4(2) and (3) of Directive 2008/115, from the standards and procedures set out by that directive cannot affect that conclusion.

(see paras 30, 31, 33, 35, 36, 41, operative part)