CJEU ̶ C 380/18, Staatssecretaris van Justitie en Veiligheid v E.P., 12 December 2019

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Date of Decision: 
C 380/18
Court Name: 
Court of Justice of the European Union (First Chamber)

Article 6(1)(e) of the Schengen Borders Code does not preclude the issue of a return decision to a third-country national not subject to a visa requirement and who is present on the territory of a M.S. for a short stay if that national is suspected of having committed a criminal offence. Moreover, the Code does not impose an obligation to establish, in order to issue such a decision, that their conduct represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of the society of the Member State concerned, as long as the principle of proportionality is respected.


E.P., a third-country national, was in the Netherlands on a short stay for which he was exempt from a visa requirement. Being suspected of having infringed the Netherlands criminal legislation relating to drugs, the State Secretary ordered E.P. to leave the territory of the European Union on the ground that he no longer fulfilled the condition set out in Article 6(1)(e) of the Schengen Borders Code since he posed a threat to public policy. E.P. brought an action against that decision before the District Court, which upheld the action and annulled the State Secretary’s decision.

The State Secretary appealed against that judgment. The Council of State requested a preliminary ruling on the possibility,  under Article 6(1)(e) of the Schengen Borders Code, for Member States’ authorities to issue a return decision towards a third-country national not subject to a visa requirement based on the sole suspicion of a criminal offence and without having established that their personal conduct represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society

Decision & Reasoning: 

The Court started by affirming that the concept of “threat to public policy” - which poses a limitation to the right to enter and stay in the territory of the EU in several norms - has been and must be interpreted in view of the wording of the specific provision, its context and its objectives. 

In these respect, the Court remarked that Article 6(1)(e) does not expressly require the personal conduct of the individual concerned to represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society in order for that individual to be capable of being regarded as a threat to public policy.  On the contrary, this wording is used in other provisions concerning the possible limitation to the right of free movement of EU citizens and their family members, namely Article 27(2) of Directive 2004/38 as well as Recital 27 and Article 8(2) paragraph 3 of the Schengen Border Code. 

Secondly, the Court recalled that, according to case-law concerning the conditions to issue a uniform visa under the Visa Code (among which there is the fact that the person is not considered a threat to public policy), Member States are accorded wide discretion in the assessment of the fulfilment of the requirements due to the intrinsic complexity of such an examination. The same discretion must logically be accorded in the context of Article 6(1)(e) of the Schengen Code.

Thirdly, the Court observed that under Article 6(1)(d) of the Schengen Borders Code another condition for a short stay on the territory of a M.S. is to the absence of an alert in the Schengen Information System (SIS), which, according to Regulation 1987/2006 (SIS Regulation), can also be based on the presence of serious grounds for believing that he or she has committed a serious criminal offence or is a threat to public security. For the purpose of coherence, the concept of threat to public policy/security found in 6 (1)e cannot be narrower than the one found in 6 (1)d.

Finally, the court underlined that Recital 6 of the Schengen Border code that border control aims at preventing ‘any threat’ to public policy, which further supports the argument that the concept of “threat to public policy” does not have to necessarily include a serious threat towards the “fundamental interests of society”. That said, the Court affirmed that the principle of proportionality, a fundamental rule of the EU, entails that the suspected infringement must be sufficiently serious to justify a return decision; and that there must be consistent, objective and specific evidence for suspecting that a third-country national has committed such an offence.


Article 6(1)(e) of Regulation (EU) 2016/399 of the European Parliament and the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code) must be interpreted as not precluding a national practice under which the competent authorities may issue a return decision to a third-country national not subject to a visa requirement, who is present on the territory of the Member States for a short stay, on the basis of the fact that that national is considered to be a threat to public policy because he or she is suspected of having committed a criminal offence, provided that that practice is applicable only if, first, the offence is sufficiently serious, in the light of its nature and of the punishment which may be imposed, to justify that national’s stay on the territory of the Member States being brought to an immediate end and, second, those authorities have consistent, objective and specific evidence to support their suspicions, matters which are for the referring court to establish.


This summary was written by Pietro Derossi, Italian lawyer working as researcher, reporter and editor for Migrantes Foundation on 'Vie di Fuga', a permanent observatory on refugees in Europe.

Case Law Cited: 

CJEU - C‑503/03 Commission v Spain, 31 January 2006

CJEU - C‑544/15 Fahimian, 4 April 2017

CJEU - C-373/13 H. T., 24 June 2015

CJEU - C-47/15, Affum, 7 June 2016

CJEU: C‑414/16 Egenberger, 17 April 2018

CJEU - C-482/01 and C-493/01 Orfanopoulos and Oliveri, 29 April 2004

CJEU - C- 84/12, Rahmanian Koushkaki v Bundesrepublik Deutschland

Z. Zh. en I.O., 11 June 2015, C-554/13, ECLI:EU:C:2015:377

CJEU - Case C-601/15 PPU, J. N. v Staatssecretaris van Veiligheid en Justitie
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