Request for a preliminary ruling from the Conseil du Contentieux des Étrangers (Belgium) lodged on 24 October 2023 – X v État belge

(Case C-637/23, Boghni ¹ )

Language of the case: French

Referring court

Conseil du Contentieux des Étrangers

Parties to the main proceedings

Applicant: X

Defendant: État belge, represented by the Secrétaire d’État à l’Asile et la Migration

Questions referred

Must Article 7(4), Article 8(1) and (2) and Article 11(1) of Directive 2008/115, ¹ read together or separately in the light of Article 13 of Directive 2008/115 and Article 47 of the Charter of Fundamental Rights of the European Union, be interpreted as meaning that they preclude the decision not to grant a period for voluntary departure from being regarded as a mere enforcement measure which does not alter the legal position of the foreign national concerned, since the granting or not of a period for voluntary departure in no way alters the first finding of an illegal stay on the territory?

    Moreover, does the right to an effective remedy, guaranteed by Article 13 of Directive 2008/115 and by Article 47 of the Charter of Fundamental Rights of the European Union, mean that it is possible to challenge, in an appeal against the return decision, the lawfulness of a decision not to grant a period for voluntary departure where, if that is not the case, the lawfulness of the legal basis for the entry ban can no longer be effectively challenged?

If the answer to the first question is in the affirmative, must the words ‘provide for an appropriate period’ in Article 7(1) and ‘and … an obligation to return’ in Article 3(4) of Directive 2008/115 be interpreted as meaning that a provision relating to the period, or, in any event, not granting a period, in the context of the departure obligation, constitutes an essential element of a return decision, with the result that if that period is found to be unlawful, the return decision becomes null and void in its entirety and a new return decision must be issued?

If the Court of Justice is of the opinion that the refusal to grant a period is not an essential element of the return decision, and if the Member State concerned has not made use, under Article 7(1) of Directive 2008/115, of the option of setting a period only following an application by the third-country national concerned, what practical scope and enforceability is to be given to a return decision within the meaning of Article 3(4) of Directive 2008/115 which would be deprived of its component relating to the period?

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¹ The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.

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).