CJEU - C-718/19, Ordre des barreaux francophones et germanophone and Others v Conseil des ministers

Facts:

Under Belgian law, provisions relating to the detention for the purpose of removal of a person are the same for Union citizens and their family members as for third-country nationals. To avoid the risk of Union citizens absconding during the period allotted to them to leave the territory of the host Member State or during any extension of that period, as well as when Union citizens do not comply with an expulsion decision taken on the grounds of public policy or public security, Belgian law foresees a detention for a maximum period of eight months in order to ensure the enforcement of the removal decision.

Regarding the maximum period of detention for persons subject to return procedures, the provisions under Belgian law have been challenged before the Belgian Constitutional Court on the grounds that these domestic measures conflict with the right of free movement of Union citizens under EU law. That Court decided to refer the following preliminary questions to the Court of Justice of the EU:

‘(1)      Must EU law, in particular Articles 20 and 21 [TFEU] and [Directive 2004/38], be interpreted as precluding national legislation according to which the provisions that apply to Union citizens and members of their families are similar to those which, in respect of third-country nationals, transpose Article 7(3) of [Directive 2008/115], that is to say, provisions according to which Union citizens and members of their families can be obliged to comply with preventive measures designed to prevent any risk of absconding during the period given to those persons in which to leave the territory following adoption of a decision to terminate residence on grounds of public policy or during an extension of that period?

(2)      Must EU law, in particular Articles 20 and 21 [TFEU] and [Directive 2004/38], be interpreted as precluding national legislation according to which a provision that applies to Union citizens and members of their families who have not complied with a decision terminating residence on grounds of public policy or public security is identical to that applied to third-country nationals in the same situation in relation to the maximum period of detention for the purposes of removal, that is to say, eight months?’

Decision & reasoning:

The Court holds that, in the absence of rules of EU law regulating the issue, national rules to expel Union citizens and their family members that are based on the rules applicable to the return of third-country nationals are not per se contrary to EU legislation unless they are precluded by other provisions of EU law. Therefore, Member States may restrict the freedom of movement and residence of Union citizens and their family members, including on grounds of public policy and public security according to EU legislation. Directive 2004/38 The only provides general rules relating to the expulsion of Union citizens and their family members; it does not make specific provisions for Member States to adopt measures to avoid the risk of Union citizens or their family members absconding during the allowed period to leave the territory of the host Member State or during an extension of that period, nor does it contain specific provisions to keep the person concerned in detention if they fail to comply with an expulsion decision within that period or withing the extension of that period. However, such rules must comply with EU legislation, i.e. they must be examined in the light of the specific provisions applicable to Union citizens and their family members in relation to free movement and residence under articles 20 and 21 TFEU and the provisions of Directive 2004/38.

Regarding the detention measures, the Court noted that the possibility of keeping Union citizens and their family members in detention for a maximum period of eight months for the purpose of removal constitutes by its very nature a restriction on the freedom of movement and residence. The restrictive nature of the measure is not altered by the fact that an expulsion decision prevents citizens from relying on their right to residence; the detention measure still constitutes a restriction on the right of exit according to Article 4(1) of Directive 2004/38. The Court holds that the measures that restrict the right to movement and residence of Union citizens and their family members and which are taken on grounds of public policy or public security are justified, if they comply with the principle of proportionality and are based exclusively on the personal conduct of the individual concerned. Here, the Court emphasises that citizenship of the Union confers on each Union citizen a primary and individual right to move and to reside freely within the territory of the Member States. Moreover, the freedom of movement constitutes one of the fundamental freedoms of the internal market, as confirmed by the content of Article 45 of the Charter of Fundamental Rights and any limitations and restrictions to that right must be laid down by the Treaties and the measures adopted to give them effect. In this regard, the provisions laying down the freedom of movement must be given a broad interpretation, whereas exceptions to and derogations from that freedom must be interpreted strictly. Moreover, if several measures are capable of achieving the enforcement of the removal decision, preference should be given to the least onerous.

Regarding the principle of proportionality of the duration of the removal procedure, the Court argues that Union citizens and members of their family, who fall within the scope of Directive 2004/38, are not in a comparable situation to that of third-country nationals, who are covered by Directive 2008/115. The Court holds as a general rule that it takes less time to establish the nationality of Union citizens and members of their families who are subject to an expulsion procedure under Directive 2004/38, contrary to the establishment of the nationality of illegally staying third-country nationals who are subject to a return procedure under Directive 2008/115. If a person is subject to the application of the provisions of Directive 2004/38, the Court argues, in principal, that that person has already been identified as a national of a Member State or as a member of the family of a Union citizen whose nationality is known. Furthermore, practical difficulties relating particularly to obtaining necessary documentation from third-country nationals are likely, in principal, to justify the detention of the individuals concerned for a period of up to eight months. Therefore, the Court decides that a maximum period of detention for Union citizens and their family members, who fall under the scope of Directive 2004/38, according to the maximum period of eight month of detention provided by Belgian law, goes beyond what is necessary to achieve the objective pursued and thus does not correspond to the principle of proportionality.

Outcome:

Articles 20 and 21 TFEU and Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, must be interpreted as:

-          not precluding national legislation which applies to Union citizens and their family members, during the period allowed for them to leave the territory of the host Member State following the adoption of an expulsion decision taken against them on grounds of public policy or during an extension of that period, provisions aimed at avoiding the risk of absconding that are similar to provisions whose purpose is, as regards third-country nationals, to transpose Article 7(3) 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 into national law, provided that former provisions respect the general principles laid down in Article 27 of Directive 2004/38 and are no less favourable than the latter provisions;

-          precluding national legislation which applies to Union citizens and their family members who, after the expiry of the period allowed for them to leave the territory or an extension of that period, have not complied with an expulsion decision taken against them on grounds of public policy or public security, a detention measure for a maximum period of detention of eight months for the purpose of removal, that period being identical to that applicable, in national law, to third-country nationals who have not complied with a return decision issued on such grounds pursuant to Article 6(1) of Directive 2008/115.