CJEU - C-806/18 JZ (Peine de prison en cas d’interdiction d‘entrée), 17 September 2020

Facts:

This case was referred to the Court of Justice by the Supreme Court of the Netherlands in appeal proceedings filed by JZ, who has been convicted on multiple occasions of committing various offences. He is a foreign national who breached the order to leave the Netherlands and was therefore convicted and sentenced to a prison term of two months according to national criminal law.

The question concerns the possibility under Directive 2008/115 on common standards and procedures in Member States for returning illegally staying third-country nationals to introduce provisions of national criminal law that penalises an illegal stay by the imposition of a prison sentence.

Decision & reasoning:

The Court affirmed that Directive 2008/115 concerns only the return of illegally staying third-country nationals and is thus not designed to harmonise in their entirety the rules of the Member States on the stay of foreign nationals. Therefore, it does not preclude the legislation of a Member State from classifying an illegal stay as an offence and laying down criminal sanctions to deter and penalise such an infringement.

The Court referred to settled case-law (El Dridi, C‑61/11 PPU, EU:C:2011:268), in stating that a Member State may not apply criminal law rules which are liable to jeopardise the achievement of the objectives pursued by Directive 2008/115 and thus to deprive it of its effectiveness. Although in principle criminal legislation and the rules of criminal procedure are matters for which the Member States are responsible, this branch of the law may nevertheless be affected by EU law. Therefore, Member States must adjust their legislation in that area in order to ensure compliance with EU law.

It was agreed that, as per Ouhrami, C‑225/16, in a situation such as the present one, in which the person concerned did not leave the Netherlands following the adoption of the return decision and, consequently, the obligation to return prescribed by that decision was never fulfilled, that person is in an unlawful situation as a consequence of an initial illegal stay, and not as a consequence of a subsequent illegal stay resulting from a breach of an entry ban, within the meaning of Article 11 of Directive 2008/115.  In such a situation, a third-country national cannot be punished for breaching an entry ban, since no entry ban has been breached.

Outcome:

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, and in particular Article 11 thereof, must be interpreted as not precluding legislation of a Member State which provides that a custodial sentence may be imposed on an illegally staying third-country national for whom the return procedure set out in that directive has been exhausted but who has not actually left the territory of the Member States, where the criminal act consists in an unlawful stay with notice of an entry ban, issued in particular on account of that third-country national’s criminal record or the threat he represents to public policy or national security, provided that the criminal act is not defined as a breach of such an entry ban and that that legislation is sufficiently accessible, precise and foreseeable in its application in order to avoid all risk of arbitrariness, which is for the referring court to ascertain.