Case C‑225/16

Criminal proceedings

against

Mossa Ouhrami

(Request for a preliminary ruling from the Hoge Raad der Nederlanden)

(Reference for a preliminary ruling — Area of freedom, security and justice — Return of illegally staying third-country nationals — Directive 2008/115/EC — Article 11(2) — Decision to impose an entry ban taken before that directive entered into force and relating to a longer period than that provided for by the directive — Time from which the period of the entry ban starts to run)

Summary — Judgment of the Court (Second Chamber), 26 July 2017

1.        EU law — Interpretation — Provision of EU law that makes no express reference to the law of Member States — Independent and uniform interpretation — Applicability in determining the time from which the entry ban issued against an illegally staying third-country national starts to run within the meaning of Directive 2008/115

(European Parliament and Council Directive 2008/115, Recital 9 Art. 11(2))

2.        Border controls, asylum and immigration — Immigration policy — Return of illegally staying third-country nationals — Entry ban — Time from which that entry ban starts to run — Date of actual departure of the person concerned from the relevant Member State

(European Parliament and Council Directive 2008/115, Art. 11(2))

3.        Border controls, asylum and immigration — Immigration policy — Return of illegally staying third-country nationals — Return decision accompanied by an entry ban issued against a third-country national considered to pose a threat to public policy or national security — Unsuccessful return procedure in relation to that third-country national — National legislation providing for the imposition of a penalty of imprisonment on such a third-country national — Lawfulness — Conditions — Verification by the national court

(European Parliament and Council Directive 2008/115)

1.      See the text of the decision.

(see paras 38-41)

2.      Article 11(2) 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 the starting point of the duration of an entry ban, as referred to in that provision, which in principle may not exceed five years, must be calculated from the date on which the person concerned actually left the territory of the Member States.

Consequently, although Article 6(6) of Directive 2008/115 opens the possibility for Member States to adopt a return decision and an entry ban at the same time, it is nevertheless clear from the general scheme of that directive that those two decisions are separate since a return decision results from the fact that the initial stay is unlawful whereas an entry ban applies to any possible subsequent stay by making it unlawful.

(see paras 50, 58, operative part)

3.      See the text of the decision.

(see paras 54-57)