Language of document : ECLI:EU:C:2018:90

ADDITIONAL OPINION OF ADVOCATE GENERAL

MENGOZZI

delivered on 22 February 2018 (1)

Case C181/16

Sadikou Gnandi

v

État belge

(Request for a preliminary ruling
from the Conseil d’État (Council of State, Belgium))

(Reference for a preliminary ruling — Directive 2008/115/EC — Return of illegally staying third-country nationals — Order for removal from national territory — Order issued after the rejection of the asylum application by the competent administrative authority — Reopening of the oral procedure)






1.        By decision of 8 March 2016, the Conseil d’État (Council of State, Belgium) made a reference for a preliminary ruling concerning the interpretation of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and of Article 5 and Article 13(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. (2)

2.        That reference was made in connection with proceedings brought by Mr Sadikou Gnandi, a Togolese national, against the État belge (Belgian State), regarding the legality of an order for removal from national territory, adopted on the basis of the first subparagraph of Article 52/3(1) of the Law of 15 December 1980 on entry to the national territory, settlement, residence and removal of foreign nationals (‘the Law of 15 December 1980’) and served on Mr Gnandi on 3 June 2014, following the rejection, on 23 May 2014, of his application for asylum by the Commissioner General for Refugees and Stateless Persons (‘the CGRA’).

3.        It should be noted that the first subparagraph of Article 52/3(1) of the Law of 15 December 1980 provides that a justified order to leave the national territory shall be issued, without delay, to any third-country national staying illegally in Belgium, when his application for asylum has been rejected by the CGRA and the status of subsidiary protection has been refused. However, under Article 39/70(1) of that law, such an order may not be enforced during the period prescribed for bringing an appeal against the decision of the CGRA which rejected the application for asylum at first instance and until that appeal has been decided. (3) On 23 June 2014, Mr Gnandi lodged an appeal with the Council for asylum and immigration proceedings (‘the CCE’) against the CGRA’s decision of 23 May 2014 rejecting his application for asylum. On the same day, he sought, also before the CCE, the annulment and suspension of enforcement of the order of 3 June 2014 requiring him to leave Belgium. On 11 July 2014, the Belgian authorities issued Mr Gnandi with the special residence permit referred to in Annex 35 to the Royal Decree of 8 October 1981 on entry to the national territory, residence, settlement and removal of foreign nationals, pursuant to Article 111 of that decree, on the grounds that he had lodged an appeal by right before the CCE. That document, which was originally valid until 10 October 2014, was extended for successive periods until 10 December 2014. Furthermore, by decision of 8 February 2016, Mr Gnandi, independently of his application for asylum, was authorised to stay temporarily in Belgium until 1 March 2017.

4.        By its question, the Conseil d’État (Council of State) asks, in essence, whether the principle of non-refoulement and the right to an effective remedy preclude the adoption of a return decision within the meaning of Directive 2008/115, such as the order to leave Belgium addressed to Mr Gnandi, in respect of an asylum applicant after his application for international protection has been rejected at first instance and before the legal remedies available to him against that rejection have been exhausted.

5.        During the written stage of the proceedings before the Court, which terminated on 18 July 2016, Mr Gnandi, the Belgian and Czech Governments and the European Commission submitted written observations pursuant to the second paragraph of Article 23 of the Statute of the Court of Justice of the European Union.

6.        On 10 January 2017, the Court decided to assign the case to the Fourth Chamber.

7.        A hearing was held before that formation of the Court on 1 March 2017. During that hearing, Mr Gnandi, the Belgian Government and the Commission presented oral argument. The oral stage of the proceedings terminated on 15 June 2017, the day on which I delivered my first Opinion in this case (4) (‘my Opinion of 15 June 2017’). In that Opinion, I suggested that the Court reply to the Conseil d’État (Council of State) that Directive 2008/115, in particular Article 2(1) and Article 5 thereof, and the principles of non-refoulement and effective judicial protection, enshrined respectively in Article 19(2) and the first paragraph of Article 47 of the Charter of Fundamental Rights of the European Union, preclude the adoption of a return decision pursuant to Article 6(1) of that directive in respect of a third-country national who has lodged an application for international protection within the meaning of Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status, (5) and who, under EU law and/or national law, is authorised to remain in the Member State in which she has lodged his application for international protection, during the period for bringing the appeal provided for in Article 39(1) of Directive 2005/85 against the rejection of that application and, where that appeal has been lodged within the period, during the examination of the appeal. I also suggested that the Court state that, on the other hand, Directive 2008/115 and the principles of non-refoulement and effective judicial protection do not preclude the adoption of such a return decision in respect of that national after rejection of that application unless, under national law, that national is authorised to remain in the Member State concerned pending the final outcome of the asylum procedure.

8.        The Fourth Chamber, considering that the case raised a question relating to the link between the judgment of 30 May 2013, Arslan (C‑534/11, EU:C:2013:343), and Article 6(6) of Directive 2008/115, decided, on 5 October 2017, to refer the case back to the Court for the purposes of its reassignment to a formation composed of a greater number of judges, pursuant to Article 60(3) of the Court’s Rules of Procedure. The case was subsequently assigned to the Grand Chamber.

9.        By order of 25 October 2017, Gnandi (C‑181/16, not published, EU:C:2017:830), the Court reopened the oral procedure and requested the interested parties, as referred to in Article 23 of the Statute, to submit their comments, in writing, on three questions contained in the annex to that order. The first question related to the legal nature and purpose of the authorisation to remain in the territory of the Member State concerned, as referred to in Article 7(1) and Article 39(3) of Directive 2005/85. The second question concerned the scope of Article 6(6) of Directive 2008/115 and the potential for that provision to be construed according to the ‘binary logic’ of the judgment of 30 May 2013, Arslan (C‑534/11, EU:C:2013:343), according to which a third-country national is, for the purposes of that directive, either staying legally or staying illegally. The third question concerned the possible impact on the interpretation of Article 6(6) of Directive 2008/115 of the entry into force of Directive 2013/32/EU (6) and, specifically, paragraph 46, which, in paragraph 5, requires Member States to allow applicants for international protection whose application has been rejected to remain in the territory of the Member State concerned during the period allowed for bringing an appeal against that decision and, if the appeal has been brought, until it has been decided. Mr Gnandi, the Governments of the Kingdom of Belgium, the French Republic, the Kingdom of the Netherlands and the Czech Republic, and also the Commission replied to those questions. Those interested parties and the Government of the Federal Republic of Germany presented oral argument at the hearing which took place before the Grand Chamber of the Court on 11 December 2017.

10.      In this Opinion, I shall address only the problems raised by the questions formulated by the Court in the annex to the order of 25 October 2017, Gnandi (C‑181/16, not published, EU:C:2017:830), which, as will be seen below, concern in essence the scope of Article 6(6) of Directive 2008/115. This Opinion must therefore be regarded as additional to the Opinion I delivered on 15 June 2017, to which I refer both for a more extensive statement of the facts of the dispute in the main proceedings and for any aspect not directly covered in this Opinion.

I.      Legal framework

11.      Article 2(1) of Directive 2008/115 states that the directive applies to third-country nationals staying illegally on the territory of a Member State.

12.      Under Article 3(2) of that directive:

‘For the purpose of this directive the following definitions shall apply:

(2)      “illegal stay” means 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 the Schengen Borders Code or other conditions for entry, day or residence in that Member State;

…’

13.      Article 6 of that directive, entitled ‘Return decision’, provides, in paragraphs 1 and 6:

‘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.

6.      This Directive shall not prevent Member States from adopting a decision on the ending of a legal stay together with a return decision … in a single administrative or judicial decision or act as provided for in their national legislation, without prejudice to the procedural safeguards available under Chapter III and under the relevant provisions of Community and national law.’

II.    Analysis

14.      The questions raised by the Court, contained in the annex to the order of 25 October 2017, Gnandi (C‑181/16, not published, EU:C:2017:830) reopening the oral stage of the proceedings, and the discussion between the interested parties during the hearing of 11 December 2017, raised, in essence, the question of whether the power which Article 6(6) of Directive 2008/115 confers on the Member States to adopt, in a single act, a decision concerning the end of a legal stay at the same time as a return decision may be exercised in respect of an applicant for international protection who, like Mr Gnandi, has had his claim rejected by the administrative authority competent to examine it, but who is authorised to remain on the territory of the Member State concerned pending the outcome of the appeal which he has brought against the rejection decision of the authority.

15.      As I have already stated in points 83 to 88 of my Opinion of 15 June 2017, the reply to that question must, in my view, be in the negative. The arguments put forward by the governments which replied to the questions posed by the Court in the order of 25 October 2017, Gnandi (C‑181/16, not published, EU:C:2017:830) and by those which appeared at the hearing of 11 December 2017 are not, to my mind, such as to call that conclusion into question.

16.      In the rest of this Opinion, I shall formulate my analysis in two parts. In the first I shall examine, in the light of the text and preparatory works of Directive 2008/115, whether an applicant for international protection who, like Mr Gnandi in the main proceedings, has been authorised to remain on the territory of the Member State pending the outcome of the appeal against the decision rejecting his application at first instance falls within the scope of Directive 2008/115. The second part will be devoted to an examination of the scope of Article 6(6) of that directive.

 The application of Directive 2008/115 to applicants for international protection entitled to stay on the territory of the Member State concerned for the purpose of the proceedings

17.      As I pointed out in point 50 et seq. of my opinion of 15 June 2017, according to Article 2(1) of Directive 2008/115, the directive applies to third-country nationals staying illegally on the territory of a Member State. The concept of ‘illegal stay’ to be used for applying Directive 2008/115 is defined in Article 3(2) of the directive, under which that concept means ‘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 the Schengen Borders Code or other conditions for entry, stay or residence in that Member State’.

18.      In the absence of an express reference to national law, that concept must, in accordance with the principles laid down by the Court concerning the interpretation of concepts contained in EU legislative texts, (7) be interpreted only on the basis of EU law, even though the specific assessment of whether a third-country national is staying legally or illegally on the territory of a Member State may, where appropriate, also depend on the application of domestic rules in that Member State. (8)

19.      It is apparent from the definition given in Article 3(2) of Directive 2008/115 that any third-country national who is present on the territory of a Member State without fulfilling the conditions for entry, stay or residence in that Member State (9) is staying illegally. For a third-country national to be regarded as staying illegally for the purposes of Directive 2008/115, to conditions must therefore be fulfilled, namely, the physical presence of the person concerned on the territory of a Member State, even for a limited period and without the intention of remaining there, (10) and the lack of a legal certificate justifying that presence.

20.      The proposal for a Directive for the European Parliament and of the Council on common standards and procedures in Member States for returning illegally staying third country nationals of 1 September 2005 (11) (‘the proposal for a Return Directive’) which led, after long negotiation, to the adoption of Directive 2008/115, was preceded by the publication, on 10 April 2002, of a Green paper on a Community return policy on illegal residents (‘the Green Paper’), (12) and by a Commission communication following that Green Paper, presented on 14 October 2002 (‘the communication of 14 October 2002’) (13) and supported by a return action programme adopted by the Council on 28 November 2002 (‘the action programme of 2002’). (14) Those measures, and the documents relating to the legislative procedure for Directive 2008/115, give us some indication of the scope of the concept of ‘illegal stay’ within the meaning of Article 2(1) and Article 3(2) of Directive 2008/115.

21.      As regards defining the material scope of the future common standards, the green paper stated, in point 2.1, that Community action on repatriation should above all focus on persons ‘with no specific protection need’ who reside illegally in the EU, that is, who ‘do not, or no longer, fulfil the conditions for entry to, presence in, or residence on the territories of the Member States’. Such persons were, as point 2.2 of the Green Paper explains, ‘third-country nationals without a legal status enabling them to stay, either on a permanent or a temporary basis, and for whom a Member State has no legal obligation to tolerate the residence’. (15) In the Green Paper, the application of return procedures to applicants for international protection was envisaged only where their applications had finally been rejected. In that regard, point 2.3, entitled ‘Asylum and Return’, stated that ‘when a person seeking protection has benefited from a fair, qualitative and comprehensive procedure, when all protection needs have been examined and if there is no other ground for a legal stay in a Member State, the person must leave the territory and return to his/her country of origin or, where appropriate, of transit’. (16)

22.      In its communication of 14 October 2002, the Commission stated that the expression ‘illegal resident’ must not be perceived as qualifying the persons as being illegal but as qualifying their status of ‘not being in compliance with the law on entry and/or residence’. Illegal stay was described in the same terms as those used in point 2.1 of the Green Paper referred to above. (17) With regard to the Green Paper, the Commission also extended the subject matter of the communication to ‘certain groups of legal residents, who have a temporary status or whose removal has been temporarily suspended’, in particular ‘persons under any form of international protection and which is principally of a temporary nature’. (18) However, that extension was provided only for the purposes of implementing voluntary return programmes. (19)

23.      In the explanatory memorandum of the proposal for a Return Directive, in line with its previous positions, the Commission confirmed the intention to define the scope of the directive to be adopted by reference to the concept of ‘illegal stay’. The new rules were therefore intended to apply ‘whatever the reason of the illegality of the stay’ of the person concerned, ‘e.g. expiry of a visa, expiry of a residence permit, revocation or withdrawal of a residence permit …, withdrawal of refugee status, illegal entrance’. As regards the situation of asylum seekers, the illegality of the stay was expressly linked to a negative ‘final decision’ on the application. (20) With regard to the definition of the concept of ‘illegal stay’, the Commission’s proposal repeated, almost word for word, the very broad definition given in the Green Paper and in its communication of 14 October 2002. That definition was reproduced, with a few formal amendments required by the Council, in the final text of Directive 2008/115. (21)

24.      It is apparent from points 21 to 23 above that there was never a question, either in the deliberations which preceded the beginning of the legislative procedure leading to the adoption of Directive 2008/115, or during that procedure, of applying the future common rules on forced return to asylum applicants whose application had not been finally rejected or whose presence on the territory of the Member State concerned was tolerated by virtue of the legal obligations of that State. That is clearly reflected in recital 9 of Directive 2008/115 which states that a third-country national who has applied for asylum in a Member State should not be regarded as staying illegally on the territory of that Member State ‘until a negative decision on the application, or a decision ending his or her right of stay as asylum seeker has entered into force’. (22)

25.      That exclusion from the scope of Directive 2008/115 is, moreover, in line with the provisions of EU law governing the legal position of asylum seekers (and more generally of applicants for international protection), who, in the same way as recognised refugees, enjoy a particular status, established by international law, (23) and therefore differ from ordinary migrants.

26.      Accordingly, EU law requires the Member States to comply with minimum standards for the reception of applicants for international protection with respect, inter alia, to stay and freedom of movement, access to the public educational system, to the labour market, to health care and to material reception conditions providing an adequate standard of living which guarantees their subsistence and protects their physical and mental health. (24) All the benefits of the application of those rules are enjoyed by applicants for international protection foras long as they are allowed to stay in that capacity on the territory of a Member State.

27.      Moreover, EU law recognises the right of asylum seekers (and, more broadly, applicants for international protection) to stay on the territory of the Member State concerned while their application is being considered. Although, under Directive 2005/85, applicable to the facts in the main proceedings, that right was provided only until the application for asylum had been rejected at first instance, (25) Directive 2013/32, which replaced Directive 2005/85, extended it to the stage of the appeal against the decision given at first instance. (26)

28.      The Member State concerned must provide the asylum seeker, within a very short period of time, with a document testifying that he or she is allowed to stay on its territory ‘while his or her application is pending or being examined’. (27)

29.      That document, which must be valid for as long as the applicant is authorised to remain on the territory of the Member State concerned, (28) while it is not a residence permit (29) within the meaning of Article 1(2)(a) of Regulation No 1030/2002 (30) nevertheless constitutes, as the Commission pointed out in its reply to the first of the written questions annexed to the order of 25 October 2017, Gnandi (C‑181/16, not published, EU:C:2017:830), an authorisation issued by the authorities of the Member State allowing a third-country national to stay legally on its territory, (31) albeit temporarily and for the sole purpose of the proceedings.

30.      Provided he is staying legally, that is to say not in an irregular situation, on the territory of the Member State concerned, and for the duration of that legal stay, an asylum seeker who has been authorised to remain on the territory pending the outcome of his application (at first instance or after bringing an appeal against the decision of the authority ruling at first instance) is excluded from the scope of Directive 2008/115, as defined in Article 2(1) and Article 3(2) of that directive. It is irrelevant, in that regard, that that authorisation was issued in application of EU law or only of national law, because what is important is the legality of the stay of the person concerned.

31.      As I noted in points 54 and 55 of my Opinion of 15 June 2017, that conclusion is confirmed by the judgment of 30 May 2013, Arslan (C‑534/11, EU:C:2013:343), in which the Court held that ‘Article 2(1) of Directive 2008/115, read in conjunction with recital 9 in the preamble, must be interpreted as meaning that that directive does not apply to a third-country national who has applied for international protection within the meaning of Directive 2005/85 during the period from the making of the application to the adoption of the decision at first instance on that application or, as the case may be, until the outcome of any action brought against that decision is known’. (32)

32.      The reasoning which led to the Court to that conclusion is clear. When an applicant for international protection enjoys the right to remain on the territory of the Member State concerned, whether or not he is in possession of a residence permit, he does not fall within the scope of Directive 2008/115 since he is not ‘illegally staying’ within the meaning of Article 2(1) of that directive. (33)

33.      It is true that a ‘binary logic’ — according to which a third-country national is, with regard to Directive 2008/115, either staying ‘legally’ (rectius ‘not illegally’) or he is staying ‘illegally’ — underlies the judgment of 30 May 2013, Arslan (C‑534/11, EU:C:2013:343). However, it is important to point out that the Court relied, in its reasoning, not on that logic but on the direct finding that an applicant for international protection who has been authorised to remain in the Member State concerned pending the outcome of his application is staying legally.

34.      That finding and the position taken by the Court in point 1 of the operative part of the judgment of 30 May 2013, Arslan (C‑534/11, EU:C:2013:343), have, therefore, a general scope, which disregards the circumstances of the dispute in the main proceedings in the case which gave rise to that judgment. It follows that it is only by overturning the judgment that the Court could affirm that Directive 2008/115 applies to an applicant for international protection authorised to remain in the Member State concerned pending the outcome of his application procedure.

35.      Moreover, as I maintained in points 55 to 57 of my Opinion of 15 June 2017, the solution proposed by the Court in the judgment of 30 May 2013, Arslan (C‑534/11, EU:C:2013:343), regarding the situation of an asylum seeker authorised to remain on the territory of the Member State concerned under Article 7(1) of Directive 2005/85 is directly applicable to the situation of an applicant whose application has been rejected at first instance and who, under national law, has the right to remain in that State pending the outcome of the appeal against the rejection decision.

36.      Firstly, contrary to what the Belgian Government maintains, there is no ‘qualitative’ difference between the ‘right to remain’ provided for by Article 7(1) of Directive 2005/85 and that envisaged by Article 39 of that directive, the grant of which is left to the discretion of the Member State concerned. In both cases, it is a right which is recognised only temporarily and for the sole purpose of the proceedings. In both cases, that right is essentially intended to protect the applicant from the consequences of a possible refoulement which may take place before his application has been examined or before he has been able to exercise his right to an effective legal remedy. In both cases, thanks to that right, the applicant enjoys benefits which are provided for by the minimum standards of reception. The only difference which existed under Directive 2005/85 and which related to the mandatory or optional nature of the grant of that right was removed by Article 46(5) of Directive 2013/32 which, as I have already pointed out, now provides, with a few exceptions, that Member States shall allow applicants for international protection to stay on their territory during the period allowed for bringing an appeal against the decision rejecting the application and during the examination of that appeal.

37.      Secondly, for the purposes of the application of Directive 2008/115, what counts is the legality of the stay of the applicant for international protection and not the grounds for granting a right to stay or the envisaged duration of the stay.

38.      It is important to state, as I did in points 72 to 82 of my Opinion of 15 June 2017, and as is apparent from the judgments of 30 May 2013, Arslan (C‑534/11, EU:C:2013:343, paragraph 60), and of 15 February 2016, N. (C‑601/15 PPU, EU:C:2016:84, paragraphs 75 and 76), that the inapplicability of Directive 2008/115 to applicants for international protection authorised to remain on the territory of the Member State concerned pending the outcome of their application procedures and, more generally, to third-country nationals who are not staying illegally within the meaning of Article 2(1) of that directive, must be understood to mean that a return procedure pursuant to that directive cannot validly be commenced in respect of such an applicant or national, not to mean that a procedure already initiated must necessarily be annulled if, during the procedure, the person concerned lodges an application for international protection or acquires, for other reasons, a right of temporary stay. (34) In such cases, the procedure may, depending on the circumstances, be only suspended for the duration of the validity of the certificate granting such a right of stay. (35)

39.      To conclude this first part of my analysis, I wish to point out, more generally, that it is only when recognition of refugee status (or as a person in need of subsidiary protection) is definitively ruled out by a decision closing the proceedings that the person concerned loses his status of asylum seeker (or, more broadly, of applicant for international protection). (36) In my view, it is only at that moment that that person may fall within the scope of Directive 2008/115, (37) provided that he is staying illegally in the Member State.

 The interpretation of the scope of Article 6(6) of Directive 2008/115

40.      In the first part of my analysis, as in my Opinion of 15 June 2017, I maintained that an asylum seeker (and, more broadly, an applicant for international protection), such as the applicant in the main proceedings, whose application has been rejected at first instance, but who is authorised, under the law of the Member State concerned, to remain on the territory of that State pending the outcome of the appeal which he has brought against the decision rejecting his application, must be regarded, owing to that authorisation, as ‘legally’ staying on that territory and that, therefore, he is excluded from the scope of Directive 2008/115, as defined by Article 2(1) of that directive, which precludes Member States from initiating a return procedure against him.

41.      For the reasons which I have already set out in my Opinion of 15 June 2017 and which I shall develop in more detail below, I consider that Article 6(6) of Directive 2008/115 does not provide arguments capable of challenging that position and that, contrary to what was maintained by the Member States which intervened in the hearing of 11 December 2017, that provision does not grant national authorities the power to adopt a return decision within the meaning of that directive in circumstances such as those of the main proceedings.

42.      Only if it were accepted that the scope of Article 6(6) of Directive 2008/115 constitutes a ‘derogation’ from Article 2(1) of that directive would it be possible to reach a different conclusion. However, there is no element, either textual or systematic or based on the interpretation of the intention of the EU legislature, which permits such a conclusion.

43.      In the first place, Article 2 of Directive 2008/115 provides for no exception to the scope of the directive as defined in Article 2(1). Article 2(2) of the directive states the circumstances in which the Member States are authorised not to follow the procedures laid down in the directive in respect of third-country nationals staying illegally within the meaning of paragraph 1 of that article. However, no derogation is provided, in that article, from the rule, enshrined in paragraph 1, that Directive 2008/115 applies only to illegally staying third-country nationals.

44.      In the second place, it is clear from the wording of Article 6(6) of Directive 2008/115, (38) and from its inclusion in Chapter II of that directive, entitled ‘Termination of illegal stay’, that that provision merely enables the Member States to combine several measures in order to commence the return procedure without delay as soon as a decision ending the legal stay of the person concerned, and marking the beginning of his illegal stay, is adopted. (39) However, the wording does not authorise an interpretation according to which Member States are authorised to adopt a return decision in respect of third-country nationals who do not fall within the scope of the directive as defined in Article 2(1) thereof, namely third-country nationals who are not staying illegally. Such an interpretation would not only conflict with the wording of Article 6(6) of Directive 2008/115 and with that of Article 2(1) of that directive, but would also diverge from the very definition of the concept of ‘return decision’, which, under Article 3(4) of that directive, covers ‘an administrative or judicial decision or act, stating or declaring the stay of the third-country national to be illegal and imposing or stating an obligation to return’. (40)

45.      In the third place, I would point out, as I had already done in point 87 my Opinion of 15 June 2017, that Article 6(6) of Directive 2008/115, according to its wording, applies ‘without prejudice [to the] relevant provisions of [EU] law and national law’. As the Commission pointed out in its oral pleadings at the hearing of 1 March 2017, those provisions also include Article 7(1) and Article 39(3) of Directive 2005/85 and, now, Article 9(1) and Article 46(5) of Directive 2013/32, as well as legislation of the Member States which grants applicants for international protection the right to remain on their territories during the examination of their application. The latitude afforded to the Member States by Article 6(6) of Directive 2008/115 therefore cannot be exercised in infringement of those provisions and that legislation.

46.      In the fourth place, it is apparent from the preparatory documents for Directive 2008/115 that the first draft of Article 6(6) thereof, contained in Article 6(3) of the proposal for a return directive, merely provided that ‘the return decision shall be issued as a separate act or decision together with a removal order’. The explanatory memorandum of that proposal explained that that clarification had been introduced in response to the concerns expressed, in advance consultations, by many Member States that the two-step procedure (return decision and removal order) envisaged by the Commission could lead to delays. (41) It was following an amendment proposed by the Council ‐ designed to confer expressly on the Member States, in addition to the power to combine the return decision and the removal order, the power to combine those measures with a decision ending the legal stay of the person concerned ‐ that the EU legislature finally arrived at the current wording of Article 6(6) of Directive 2008/115. (42) in spite of the change of text, the objective of that provision remained the same, namely to give the Member States a certain latitude as regards the procedure to be followed for returning third-country nationals staying illegally. However, there is no reason to conclude that, at any stage of the procedure for adopting Directive 2008/115, that provision acquired the function of giving Member States the opportunity to derogate from the framework clearly defined by Article 1 and Article 2(1) of that directive, establishing the subject matter and scope of the directive, and of allowing the Member States to adopt a return decision in respect of third-country nationals who are not staying illegally. (43) If that had been the legislature’s intention, it would doubtless have been more clearly expressed and framed, and would not have been concealed behind a procedural provision.

47.      In the fifth place, with regard to the teleological arguments on which certain Member States relied in their responses to the questions posed by the Court in the order of 25 October 2017, Gnandi (C‑181/16, not published, EU:C:2017:830) and at the hearing of 11 December 2017 it is undoubtedly true that the objective of Article 6(6) of Directive 2008/115 is to speed up return procedures. Indeed, the simultaneous adoption of the decision ending the legal stay and the return decision, in the case of linked and interdependent measures, facilitates this per relationem and, above all, allows for the parallel, and possibly combined, processing of the appeals against those measures. More generally, as is apparent from recital 4 of Directive 2008/115, and as the Court has recognised on many occasions, the establishment of an effective policy of removal and repatriation of illegally staying third-country nationals is one of the objectives pursued by Directive 2008/115. (44)

48.      However, it must be pointed out that Directive 2008/115 seeks to establish a system based on clear, transparent and fair rules, (45) with the aim of promoting legal certainty in an area as sensitive as that of the forced return of third-country nationals and, at the same time, to ensure the effectiveness of return procedures and respect for the fundamental rights of the persons concerned. (46)

49.      To do this, Directive 2008/115 takes as a starting point the same ‘binary logic’ which underlies the judgment of 30 May 2013, Arslan (C‑534/11, EU:C:2013:343), which is therefore consistent with the spirit of that directive. In order to limit as far as possible any uncertainties in the application of the rules it lays down, the directive, in Article 6(1), places an obligation on the Member States to return third-country nationals staying illegally on their territory and, at the same time, provides, in Article 6(2) to (5), clear exceptions to that obligation. Apart from those exceptions, any third-country national staying illegally on the territory of the Member State in question, in accordance with Article 2(1) of Directive 2008/115, must be subject to a return decision. (47) On the other hand, third-country nationals who are not staying illegally or who fall within those exceptions will, in principle, be excluded from the procedures laid down by that directive as long as the grounds for that exclusion persist.

50.      The interpretation of Article 6(6) of Directive 2008/115 proposed by the Member States intervened in the hearing of 11 December 2017, in that it seeks to permit the initiation of a return procedure in respect of a group of third-country nationals who do not fall within the scope of that directive, (48) is not only contrary to the letter and spirit of that directive, as I have stated above, but also undermines the objective of legal certainty which it pursues, favouring the creation of grey areas and fuelling the dissemination of different practices among the Member States, (49) which, furthermore, runs counter to the very mission of that directive, which is to create a body of common standards and practices.

51.      The fact that an applicant for international protection who has a right to remain on the territory of a Member State is at the same time subject to a return order which, although it cannot be immediately enforced, nevertheless puts him under an obligation to leave the territory of that State, ultimately creates a situation of uncertainty if not, sometimes, of legal opacity which may jeopardise not only the transparency but also the effectiveness (50) of the return procedures, and may interfere with the respect, by the competent authorities of the Member State concerned for the rules for reception of applicants for international protection referred to above. (51) All, in the last resort, to speed up the proceedings, a result which is not always evident. It is true that the simultaneous adoption of the decision rejecting the application for international protection at first instance and the return order facilitates, in principle, the parallel conduct of any appeals brought against those two measures. However, it should be pointed out that, since the return order is based on the adoption of the rejection decision, an appeal against the former, brought after the appeal against the latter has been dismissed may be speedily dismissed in its turn. Furthermore, a return order may, depending on the circumstances, under Article 6(6) of Directive 2008/115 and where the national law so permits, be issued by the court hearing the appeal against the decision rejecting the application for international protection at first instance, at the same time as the judgment rejecting that appeal. Since, under Article 13(2) of Directive 2008/115, the appeal against a return order does not necessarily have suspensive effect (that is the case in Belgian law), such an order may, depending on the circumstances, be enforced in spite of the fact that an appeal has been brought against it.

III. Conclusion

52.      In the light of the foregoing considerations and of the analysis conducted in my Opinion of 15 June 2017, I maintain my initial proposal that the reply to the question referred for a preliminary ruling by the Conseil d’État (Council of State, Belgium), which has been formulated in this Opinion, should be as follows:

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, in particular Article 2(1) and Article 5 thereof, and the principles of non-refoulement and effective judicial protection, enshrined respectively in Article 19(2) and the first paragraph of Article 47 of the Charter of Fundamental Rights of the European Union, preclude the adoption of a return decision pursuant to Article 6(1) of that directive in respect of a third-country national who has lodged an application for international protection within the meaning of Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status and who, under EU law and/or national law, is authorised to remain in the Member State in which he has lodged his application for international protection, during the period for bringing the appeal provided for in Article 39(1) of Directive 2005/85 against the rejection of that application and, where that appeal has been lodged within the period, during the examination of the appeal. On the other hand, Directive 2008/115 and the principles of non-refoulement and effective judicial protection do not preclude the adoption of such a return decision in respect of that national after rejection of that application unless, under national law, that national is authorised to remain in the Member State concerned pending the final outcome of the asylum procedure.


1      Original language: French.


2      OJ 2008 L 348, p. 98.


3      Article 39/70(1) of the Law of 15 of December 1980 stipulates that ‘unless the person concerned agrees, no order for removal from national territory or for refoulement may be enforced against a foreign national during the period prescribed for bringing an appeal or during the examination of that appeal’.


4      EU:C:2017:467.


5      OJ 2005 L 326, p. 13.


6      Directive of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (OJ 2013 L 180, p. 60).


7      See, inter alia, the judgment of 21 October 2010, Padawan (C‑467/08, EU:C:2010:620, paragraph 32).


8      Directive 2008/115, the legal basis for which is only Article 63(3)(b) EC, does not envisage a harmonisation of the reasons for ending the legal stay of third-country nationals.


9      See the judgment of 7 June 2016, Affum (C‑47/15, EU:C:2016:408, paragraph 48).


10      See the judgment of 7 June 2016, Affum (C‑47/15, EU:C:2016:408, paragraph 48).


11      COM(2005) 391 final.


12      COM/2002/0175 final.


13      COM(2002) 564 final.


14      Doc 14673/02 of 25 November 2002. Finally, the Hague Programme, adopted on 4 and 5 November 2004 at the Brussels European Council, expressly recommended the definition of common standards so that the persons concerned could be repatriated in a humane manner and with full respect for their fundamental rights and dignity, and called on the Commission to submit a proposal early in 2005.


15      Emphasis added.


16      Emphasis added.


17      See point 1.2.2 of the communication of 14 October 2002. In point 2.3.4 of that communication, entitled ‘Ending of legal residence’, the Commission proposed ‘that a person can be obliged to leave the territory of a Member State from the moment legal residence has ended. This includes rejection of an application for residence …, expiration of a residence permit or withdrawal/revocation of it. …’ It stated that ‘legal residence is also considered to have ended if a remedy against the decision concerning the right to stay on the territory of the Member State has no suspensive effect’ (emphasis added). I would point out, furthermore, that, annexed to the communication of 14 October 2002, is a list of definitions, including that of the concept of ‘illegal resident’, which is formulated in almost identical terms to those used in Article 3(2) of Directive 2008/115.


18      See point 1.2.1 of the communication of 14 October 2002.


19      In point 2.4 of the communication of 14 October 2002, the Commission states that there are ‘two types of return processes: strictly voluntary return where an individual decides of his or her own accord to return and is helped to do so; and situations where the state authorities oblige return with due and proper regard to international law and the human rights of the persons concerned’. It says that ‘there is also a hybrid situation in which a person accepts the obligation of the return process but also accepts assistance from the authorities’.


20      See point 4 of the explanatory memorandum (emphasis added). See also Commission staff working document of 1 September 2005, SEC(2005) 1057, point 1 and Commission staff working document of 4 October 2005, SEC(2005) 1175, sub article 3.


21      Under Article 3(b) of the proposal, ‘illegal stay’ meant ‘the presence on the territory of a Member State, of a third-country national who does not fulfil, or no longer fulfils the conditions for stay or residence in that Member State’. Article 2(1)(a) and (b) of the proposal stated that the future directive was to apply to third-country nationals staying illegally in the territory of a Member State, that is, ‘who do not fulfil or no longer fulfil the conditions of entry as set out in Article 5 of the Convention Implementing the Schengen Agreement’ or who ‘are otherwise illegally staying in the territory of a Member State’. Following an amendment proposed by the Council the two articles were combined, giving rise to the present wording of Article 3(1)(b) of Directive 2008/115. See F. Lutz, The Negotiations on the Return Directive, Comments and Materials, Nijmegen, Wolf Legal Publishers, 2010, Council position before the triligue (Council document 15566/07), reproduced in Annex 5, p. 179.


22      Emphasis added.


23      The principle of non-refoulement enshrined in Article 33 of the Convention relating to the Status of Refugees, signed in Geneva on 28 July 1951 [United Nations Treaty Series, vol. 189, p. 150, No 2545 (1954)] also applies to refugees not yet recognised as such.


24      See Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers (OJ 2003 L 31, p. 18), applicable ratione materiae to the facts of the dispute in the main proceedings, and Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (OJ 2013 L 180, p. 96), which replaced Directive 2003/9.


25      See Article 7(1) of Directive 2005/85. Under Article 39(3)(a) of that directive, Member states were, on the other hand, free to decide, in accordance with their international obligations, whether to authorise asylum applicants to remain on their territory even pending the outcome of the appeal against the rejection decision rendered at first instance.


26      See Article 46(5), according to which, without prejudice to the situations referred to in paragraph 6 of that article, ‘Member States shall allow applicants to remain in the territory until the time limit within which to exercise their right to an effective remedy has expired and, when such a right has been exercised within the time limit, pending the outcome of the remedy’. The right of an asylum seeker to remain on the territory of the Member State concerned until a decision is taken at first instance is now provided for in Article 9(1) of Directive 2013/32.


27      See Article 6(1) of Directive 2003/9 and Article 6(1) of Directive 2013/33.


28      See Article 6(4) of Directive 2003/9 and Article 6(4) of Directive 2013/33. As has been noted above, when Directive 2005/85 was in force, EU law required Member States to grant a right of stay to asylum seekers only during the initial examination of their application. In order to ensure the exercise of a right to an effective remedy, Article 46(5) of Directive 2013/32 extended that right to the review of the application.


29      See, to that effect, the final sentence of Article 7(1) of Directive 2005/85 and the final sentence of Article 9(1) of Directive 2013/32.


30      Council Regulation (EC) No 1030/2002 of 13 June 2002 laying down a uniform format for residence permits for third-country nationals (OJ 2002 L 157, p. 1).


31      Under Article 1(2)(a)(ii) of Regulation No 1030/2002, ‘residence permit’ means any authorisation issued by the authorities of the Member State allowing a third-country national to stay legally on its territory with the exception ‘of permits issued pending examination of an application … for asylum’.


32      See the judgment of 30 May 2013, Arslan (C‑534/11, EU:C:2013:343, paragraph 49 and point 1 of the operative part).


33      See the judgment of 30 May 2013, Arslan (C‑534/11, EU:C:2013:343, paragraph 48.


34      For example, because the person concerned, having been served with a return order when he was staying illegally, is granted by the Member State concerned a permit giving him a right of stay for humanitarian or compassionate reasons, in accordance with Article 6(4) of Directive 2008/115.


35      See, to that effect, Article 6(4) of Directive 2008/115 which provides that, as a Member State decides to grant the right of stay to a third-country national it shall not take any return decision in respect of that national but if such a decision has already been taken, it may simply be suspended for the duration of that right.


36      Under Article 2(c) of Directive 2005/85, and now Article 2(c) of Directive 2013/32, ‘“applicant for asylum” means a third-country national or stateless person who has made an application for asylum in respect of which a final decision has not yet been taken’ (emphasis added). The same definition was given in Article 2(c) of Directive 2003/9 and is now contained in Article 2(b) of Directive 2013/33. The concept of ‘final decision’ is in its turn defined by Article 2(d) of Directive 2005/85, as ‘a decision … which is no longer subject to a remedy within the framework of Chapter V [of that directive], irrespective of whether such remedy has the effect of allowing applicants to remain in the Member States concerned’. See also Article 2(e) of Directive 2013/32.


37      In its comments on the Green Paper, the United Nations Refugee Agency (UNHCR) — after recognising the importance, for the purpose of maintaining the integrity of the asylum system, of an effective policy for returning persons whose asylum applications have been ‘properly rejected’ — states that ‘by “properly rejected asylum-seekers”, UNHCR means those who, after due consideration of their claims in fair procedures, have been found not to qualify for refugee status on the basis of the 1951 Convention, nor to be in need of protection on other grounds, including, but not exclusively, obligations under international human rights instruments, and who are not authorised to stay in the country concerned for other compelling reasons. For UNHCR, the key consideration is that the rejection has taken place in accordance with international protection standards …’


38      It should be remembered that that provision provides that a return decision pursuant to Article 6(1) of that directive, possibly combined with a removal order, may be adopted at the same time as a decision ‘on the ending of a legal stay’.


39      Although the wording in French of Article 6(6) of Directive 2008/115 is not without ambiguity, other language versions, such as, for example, the Italian version (‘decidano di porre fine al soggiorno regolare’) or the English version (‘decision on the ending of a legal stay’) are very clear with regard to the need for a decision ending the legal stay to be adopted.


40      Emphasis added.


41      Point 4 of the proposal for a Return Directive, under the section entitled ‘Chapter II’. See also the SCIFA Guidelines (Council document 6624/07), reproduced in Annex 4 to F. Lutz, op. cit., p. 175.


42      See Council position before trilogue (Council document document 15566/07) reproduced in Annex 5 to F. Lutz, op. cit., p. 197.


43      Moreover, I note that the final clause in Article 6(6) of Directive 2008/115, which states that that provision is without prejudice to the ‘relevant provisions of Community and national law’ ‐ which include, as I have pointed out in point 44 of this Opinion, those which confer on applicants for international protection the right to remain on the territory of the Member State in question pending the outcome of the procedure relating to their application — was not included in the text of the amendment proposed by the Council, but was added subsequently.


44      See to that effect the judgments of 28 April 2011, El Dridi (C‑61/11 PPU, EU:C:2011:268, paragraph 59), and of 15 February 2016, N. (C‑601/15 PPU, EU:C:2016:84, paragraph 75).


45      See recital 4 of that directive.


46      See in particular recitals 2, 17, 24 and Article 1 of that directive.


47      That means that the Member States are no longer free to tolerate the presence of such third-country nationals on their territory.


48      Namely the applicants for international protection who, under EU law or national law, are authorised to remain on the territory of a Member State, albeit temporarily and for the sole purpose of the proceedings.


49      In that regard, I note that, at the hearing of 11 December 2017, the Commission stated that, according to the information available to it, the practice of serving a return order on an applicant for international protection following the adoption of the decision rejecting the application for international protection at first instance concerns only a small number of Member States, namely the Kingdom of the Netherlands, the Federal Republic of Germany, the Kingdom of Sweden, the Republic of Finland and the Grand-Duchy of Luxembourg.


50      In principle, once a return procedure has been initiated it must be completed. From the finding that a stay is illegal, the objective of removal as soon as possible is established and must, in principle be respected (see the judgment of 15 February 2016, N. (C‑601/15 PPU, EU:C:2016:84, point 76). It is therefore preferable for that procedure to begin only when rejection of the application for international protection has become final, instead of being suspended or having to be recommenced when the decision rejecting that application at first instance is annulled.


51      As regards the order to leave the territory served on Mr Gnandi, I refer to the considerations set out in points 84 to 99 of my Opinion of 15 June 2017.