CJEU - AG Opinion in Case C‑554/13 Z. Zh. and O

Friday, February 13, 2015

(Area of freedom, security and justice — Directive 2008/115/EC — Common standards and procedures in Member States for returning illegally staying third-country nationals — Article 7(4) — Decision refusing to grant a period for voluntary departure — Risk to public policy)

Facts of the case

Mr. Zh and Mr. O are third country nationals who were both ordered to leave the Netherlands with immediate effect on grounds that they constituted a risk to public policy and were not entitled to a period allowing them to depart voluntarily from the Netherlands. Mr. Zh, transiting through the Netherlands, had been convicted of travelling with a false travel document and Mr, O, staying in the Netherlands after the expiration of his short stay visa, was arrested and detained on suspicion of domestic abuse. Seeking guidance from the CJEU as to the meaning of Article 7(4) of the Returns Directive, the Raad van Stat referred questionsrelating, in particular, to the definition of the words ‘poses a risk to public policy’.

Consideration of the questions referred

With the first question the Advocate General undertakes a teleological interpretative approach in analysing the meaning of “risk to public policy” advancing that in line with EU legislation and case-law “public policy” is to be assimilated with the French version of the Directive’s text, “ordre public” and that “poses a risk” should be understood as meaning “constitutes a danger or threat” [32-43]. Thus, and in line with Recital 6 of the Directive, the AG submits that “there must be a real and sufficient danger to [public order] for the Member State to have recourse to the derogation. In other words, it is not sufficient for the person concerned to have acted against [public order]” [44].

Underlying that the derogation of public order must be interpreted strictly, the AG submits that Article 7(4) cannot be determined unilaterally by each Member State, but must be subject to the control of EU institutions [46]. In this manner the onus is “on the Member State relying upon the derogation to show why there is a threat to [public order] in any particular case and to put forward grounds justifying recourse to the derogation in Article 7(4)” [47]. Moreover, the AG looks into whether any useful purpose is served by comparing by analogy Article 7 (4) with other Directives, notably the Citizenship Directive, the Long-Term Residence Directive and the Family Reunification Directive, which also contain public order exceptions. Vehemently disagreeing with such an approach the AG advances that to compare thresholds of when public order may be triggered would be to create a hierarchy of protection, “implying that those at the bottom fall more readily within the scope of a provision derogating from rights afforded to them under EU law simply because they are of a lower status in the hierarchy” [58]. This would go against the provisions of the Charter which are to apply with equal rigour to third country nationals as well as EU citizens [59].

Underlying that an individual assessment must be undertaken when examining whether a third-country national constitutes a risk to public order, the AG goes on to note, with specific reference to Mr. Zh, that “it does not necessarily follow that any breach of the criminal law, however minor, constitutes a (future) threat to [public order] within the meaning of Article 7(4).” Submitting that a number of third country nationals in flight present false papers at the EU border the AG highlights that there should be no automatic decision to deprive a national of voluntary departure on account of travelling with false papers [62]. This, according to the Advocate, also applies where the individual is suspected of committing a criminal offence [69]. However, the AG does note that “a conviction does not have to become final and absolute with no further appeal in order to bring the person concerned within the scope of Article 7(4) of the Returns Directive” [64] and, “in principle, suspicion of having committed a criminal offence could be enough to invoke the Article 7(4) derogation”[68].

As to the second question the AG advises the Court to conclude that other factors, such as the severity of the penalty imposed; and the degree of involvement of the person concerned in committing that offence; as well as the person’s intention to re-offend should be taken into account when assessing whether Article 7(4) derogations apply [74]. However, the assessment must be undertaken on a case by case basis. Moreover, the weight to be attached to these factors are relative and should be weighed against “the degree of the disturbance and the nature of the threat to the [public order]”, something which is appreciably less apparent in the case of Mr. Zh [76]. Interestingly, and despite noting that the proceedings are not ones of infringement, the AG highlights that the Dutch practice of refusing to grant a period for voluntary departure because the person concerned had a criminal conviction or was suspected of having committed a crime, was incompatible with the Returns Directive. This is because the wording of the Directive requires a case by case assessment and that there exists no presumption against voluntary departure where the person concerned is convicted or is suspected of having committed a criminal offence within the Directive [79].

Lastly, the AG submits that an interpretation of Article 7(4) allowing a Member State automatically to affect immediate expulsion if the public order derogation applies is incompatible with the Returns Directive [87]. To decide the contrary would breach the EU principle of proportionality, which in the context of the Returns Directive “requires that when restricting the right to voluntary departure the least restrictive measure should be taken according to the circumstances of the case” [91]. Thus, the AG concludes that when determining whether to grant a reduced period for voluntary departure under Article 7(4) it would be incompatible with the Directive to automatically not grant a period of voluntary departure in every case, “even if a period of between one and six days for voluntary departure might be appropriate in the circumstances of an individual case” [94].


13 February 2015
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Assessment of facts and circumstances
Exclusion from protection
Personal circumstances of applicant