CJEU - C-297/12, Gjoko Filev, Adnan Osmani

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Country of Applicant: 
Macedonia
Serbia
Date of Decision: 
19-09-2013
Citation: 
C-297/12
Court Name: 
Fourth Chamber of the CJEU
Headnote: 

The Returns Directive does not permit an entry ban to be time limited only in circumstances where the recipient makes an application for such.

Facts: 

Filev and Osmani were expelled from Germany in the 1990s and received entry bans of unlimited duration. Although they were informed of their right under German law to apply for a time limit to the entry bans, they did not exercise this right. They returned to Germany in April 2012 and were prosecuted for breach of their entry bans.

The request concerned whether criminal sanctions imposed for the breach of an unlimited entry ban are precluded by Article 11(2) of Directive 2008/115/EC, which requires that 'the length of the entry ban shall be determined with due regard to all relevant circumstances of the individual case and shall not in principle exceed five years. It may however exceed five years if the third-country national represents a serious threat to public policy, public security or national security.’

Questions referred for a preliminary ruling

1. Is Article 11(2) of Directive [2008/115] to be interpreted as precluding Member States from making breaches of administrative law expulsion or removal orders subject to criminal law sanctions, where the expulsion or removal order was made more than 5 years prior to re-entry?

2. Is Article 11(2) of Directive 2008/115 to be interpreted as precluding the Federal Republic of Germany from making breaches of administrative law expulsion or removal orders subject to criminal law sanctions where those orders were made more than five years before the [Law of 22 November 2011] came into force?

3. Does national legislation which provides that the effects of expulsion or removal orders are not in principle limited in time, unless the interested party lodges an application for a time-limit, comply with European Union law, in particular Article 11(2) of Directive [2008/115][?] Does such a provision comply with the requirements of recital 4 of the preamble to that directive in relation to a well managed migration policy by way of clear, transparent and fair rules?

4. Is Directive 2008/115 to be interpreted as precluding Member States from providing that expulsion or removal orders which predated the period during which the directive had not been implemented by 5 years or more may subsequently again serve as a basis for criminal proceedings, where the expulsion or removal order was based on a criminal conviction[?]’

Decision & Reasoning: 

The Court noted that the phrase ‘the length of the entry ban shall be determined’ places Member States under an obligation to limit the effects in time of any entry ban in principle to a maximum of five years independently of an application made for that purpose by the relevant third-country national [para 27]. Placing the burden on the recipient of the ban to apply for a time limit is seen as insufficient to meet the objective of Article 11(2), namely to limit the ban to 5 years unless security considerations apply [paras 31-33].

The Court then determined that a Member State may not impose criminal sanctions for breach of an entry ban that does not comply with Article 11(2), including where that entry ban was imposed more than five years before either the coming into force of the law implementing the Directive, or the re-entry of the recipient of the ban. For this decision, the Court relies on ‘settled case law’ for the principle that ‘new rules apply immediately, except in the event of a derogation, to the future effects of a situation which arose under the old rules’.

Outcome: 

The operative part of the judgment is as follows:

1.      Article 11(2) of 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 must be interpreted as precluding a provision of national law, such as Article 11(1) of the Law on the residence, gainful employment and integration of foreign nationals on Federal territory (Gesetz über den Aufenthalt, die Erwerbstätigkeit und die Integration von Ausländern im Bundesgebiet), which makes the limitation of the length of an entry ban subject to the making by the third-country national concerned of an application seeking to obtain the benefit of such a limit.

2.      Article 11(2) of Directive 2008/115 must be interpreted as precluding breach of an entry and residence ban in the territory of a Member State, which was handed down more than five years before the date either of the re-entry into that territory of the third-country national concerned or of the entry into force of the national legislation implementing that Directive, from giving rise to a criminal sanction, unless that national constitutes a serious threat to public order, public security or national security.

3.      Directive 2008/115 must be interpreted as precluding a Member State from providing that an expulsion or removal order which predates by five years or more the period between the date on which that Directive should have been implemented and the date on which it was implemented, may subsequently be used as a basis for criminal proceedings, where that order was based on a criminal law sanction within the meaning of Article 2(2)(b) of that Directive and where that Member State exercised the discretion provided for under that provision.

Case Law Cited: 

CJEU - C-393/10, O'Brien

CJEU - C-395/08 and C‑396/08, Bruno and Others

CJEU - C-162/00, Pokrzeptowicz‑Meyer
Other sources cited: 

Article 104b of the CJEU’s Rules of Procedure

Authentic Language: 
German
Country of preliminary reference: 
Germany
National / Other Legislative Provisions: 
TFEU - Art 79
Germany - AufenthG (Residence Act)
Germany - Act of 22 Nov 2011
Germany - Code of Criminal Procedure