CJEU: AG Opinion in Case C-225/16 Ouhrami, 18 May 2017

On 18 May 2017, Advocate General Sharpston issued her opinion on case C-225/16 Ouhrami, in which the Supreme Court of the Netherlands had referred questions for a preliminary ruling regarding the interpretation of Article 11 of the Returns Directive (duration of entry bans). The CJEU has been asked to rule (1) on the starting point of the period of an entry ban, and (2) on whether an entry ban issued prior to the entry into force of the Return Directive (“historic entry ban”) can exceed the maximum time period prescribed by that Directive (five years).
 
Regarding the first question, based on the overall goals of the Return Directive, namely achieving a coherent EU approach to returning third-country nationals (TCN), the starting point of an entry ban should be when the third-country national actually leaves the territory of the Member States. The AG further argues that using the moment of notification of the entry ban as the point of reference would compromise the efficiency of the Directive, as a TCN could avoid the legal effects of an entry ban by not complying with the return decision for the duration of the ban.
 
With regard to the second question, the AG drew on the CJEU’s decision in Filev and Osmani that a “historic entry ban” could not go beyond the maximum length prescribed by the Returns Directive unless such a ban was issued on the grounds of “serious threat to public order, public security or national security”. While recognising that Member States remain free to define public policy, she argues that this term cannot be construed broadly. “Serious threat to public policy” must refer to a danger of a future act by the TCN, which will not be justified by every breach of criminal law. The assessment of such “serious threat” should be carried out with due regard to all relevant circumstances on an individual case. In the case of historic entry bans of unlimited duration, the AG argues that it is necessary for the national authorities to review the file and fix a duration for the entry ban.

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