CJEU - Case C-18/19 WM, 2 July 2020

Facts:

The applicant, a National of Tunisia, was residing in Germany. In August 2017, the competent German authorities ordered his removal to Tunisia on the ground that he posed a particular threat to national security.

The applicant ordered an appeal against this decision. In May 2018, he was removed for Tunisia.

In that context, the referring court asked the CJEU whether Article 16(1) of Directive 2008/115 allows a Member State to detain an illegally staying third-country national in prison accommodation for removal, separated from ordinary prisoners, not because of a lack of specialised detention centres in that Member State, but on the ground that that foreign national poses a severe threat to the life and limb of others or national security.

Decision & reasoning:

The CJEU held that the first sentence of Article 16(1) of Directive 2008/115 lays down the principle that the detention of illegally staying third-country nationals for removal is to take place in specialised detention facilities. The second sentence lays down a derogation from that principle, which must be interpreted strictly. The court highlighted the fact that the second sentence of Article 16(1) of Directive 2008/115 is not expressed in identical terms in different language versions of the instrument.

The court referred to its case-law to explain that whenever there is a divergence between the various language versions of a legislative text, the provision must be interpreted by reference to the general scheme and the purpose of the rules of which it forms part. In that sense, the court interprets the first sentence of Article 16(1) of Directive 2008/115  as permitting exceptions to the general rule.

The detention of a third-country national in prison accommodation for removal under the second sentence of Article 16(1) of Directive 2008/115 is therefore justified on the ground of a threat to public policy or public security only if the applicant’s conduct represents a genuine, present and sufficiently serious threat, affecting one of the fundamental interests of society or the internal or external security of the Member State concerned.

The court also presents the definition of the terms “public security” and “risk to public policy”.

Outcome:

Article 16(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 must be interpreted as not precluding national legislation which allows an illegally staying third-country national to be detained in prison accommodation for the purpose of removal, separated from ordinary prisoners, on the ground that he poses a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society or the internal or external security of the Member State concerned.

Observations/comments:

This summary was written by Larissa Beckman, LLM stuent at Queen Mary University London.