CJEU: Opinion of Advocate General Kokott in Case C-240/17 E, 13 December 2017

Wednesday, December 13, 2017

On 13 December 2017, Advocate General Kokott published its opinion in case C-240/17 E, which regards the interpretation of the Convention Implementing the Schengen Agreement (CISA) where a Contracting State imposes an entry ban for the entire Schengen Area and the affected individual has a valid residence permit in another Contracting State. According to Article 25(2) of the CISA, Contracting States are required to cooperate and consult in such cases.

With regard to the proper time to begin consultations, AG Kokott advances that Article 25(2) of the Convention implementing the Schengen Agreement is to be interpreted as meaning that the consultations prescribed in that provision should take place as soon as possible, but do not have to begin before a decision to return a person and impose an entry ban has been made.  

AG Kokott is also of the opinion that Member States are not free to enforce a return decision before the conclusion of consultations. Doing otherwise would run counter the objective of attaining coherent and consistent actions between national authorities. However, two exceptions should be recognised. First, in cases where the Member State consulted has not sent its observations although a reasonable time period has passed, the requesting Member State can enforce the return decision. According to her, a period for response of 7 to 30 days can be considered appropriate (a period ultimately comparable to the period for voluntary departure that can be granted to the third-country national concerned), unless more time is requested by the consulted Member State and a longer period is accorded upon between the states concerned. Secondly, in case the third-country national concerned poses a threat to public safety and order, the security interests of all Member States within the Schengen Area should be a primary consideration and a Member State is allowed to enforce a return decision before the end of consultations.

Finally, Advocate General Kokott affirmed that Article 25(2) CISA does not merely regulate the relationship between Member States and, based on the CJEU decisions in C-201/16 Shiriand C-670/16 Mengesteab, individuals may rely on provisions of EU law which are merely procedural in nature before the national courts when they may be affected if the provision is not applied or is applied incorrectly.


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Residence document