Judgment of the Court (Second Chamber) of 10 September 2013 (request for a preliminary ruling from the Raad van State – Netherlands) – M. G., N. R. v Staatssecretaris van Veiligheid en Justitie

(Case C-383/13 PPU) ¹

(Visas, asylum, immigration and other policies related to free movement of persons – Immigration policy – Illegal immigration and illegal residence – Repatriation of illegal residents – Directive 2008/115/EC – Return of illegally staying third-country nationals – Removal process – Detention measure – Extension of detention – Article 15(2) and (6) – Rights of the defence – Right to be heard – Infringement – Consequences)

Language of the case: Dutch

Referring court

Raad van State

Parties to the main proceedings

Applicants: M. G., N. R.

Defendant: Staatssecretaris van Veiligheid en Justitie

Re:

Request for a preliminary ruling – Raad van State – Interpretation of Article 41(2) of the Charter of Fundamental Rights of the European Union (OJ 2000 C 364, p. 1) and of Article 15(6) 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) – Detention measures – Extension – Lack of cooperation on the part of the nationals concerned in the removal procedure – Breach of the rights of the defence – Right of every person to be heard before any individual measure which would affect him adversely is taken

Operative part of the judgment

European Union law, in particular Article 15(2) and (6) 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, must be interpreted as meaning that, where the extension of a detention measure has been decided in an administrative procedure in breach of the right to be heard, the national court responsible for assessing the lawfulness of that extension decision may order the lifting of the detention measure only if it considers, in the light of all of the factual and legal circumstances of each case, that the infringement at issue actually deprived the party relying thereon of the possibility of arguing his defence better, to the extent that the outcome of that administrative procedure could have been different.

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¹ OJ C 260, 7.9.2013.