CJEU: Interpretation of Schengen Borders Code in return decisions on grounds of threats to public policy and internal security

Thursday, December 12, 2019

On 12 December 2019, the Court of Justice of the European Union (the Court) published its judgment (case C-380/18) on the interpretation of the Schengen Borders Code 2016/399 (SBC) concerning return decisions issued on the grounds of a threat to public policy.

The case concerns a third country national who arrived in the Netherlands for a short stay and exempt from visa requirements. The applicant was then suspected of a criminal offence and was ordered to leave on the grounds that they posed a threat to public policy contrary to requirements laid down in Article 6(1)(e) SBC. The decision was overturned and the referring Court questioned the uncertainty of what constitutes a genuine, present and sufficiently serious threat to fundamental interests of society. The question to the Court of Justice was whether Article 6(1)(e) SBC must be interpreted as precluding practice under which a competent authority may issue a return decision on the basis that the third country national who is not subject to visa requirements is considered a threat to public policy as a result of a suspicion of having committed a criminal offence.

The CJEU noted that the scope of the concept ‘threat to public policy’, within the meaning of Article 6(1)(e) SBC, has to take into account the wording of that provision, its context and the objectives pursued. The specific wording of this provision does not explicitly require personal conduct of an individual to represent a threat. States should therefore be accorded wide discretion in determining what constitutes a threat to public policy, as similarly accorded under Article 21 Regulation 810/2009.

Moreover, the Court noted that the safeguarding of public policy is one of the objectives pursued by the Schengen Borders Code. Notwithstanding this, State practice must comply with the principle of proportionality and not go beyond what is necessary to protect public policy. Moreover, the infringement the individual is suspected of must be deemed to be sufficiently serious to justify terminating their stay immediately. In the absence of a conviction, a threat may be shown to exist where there is consistent, objective and specific evidence providing grounds for suspicion. It is for national courts to determine whether State practice meets these requirements. The Court concluded that Article 6(1) (e) cannot be interpreted as precluding the issuing of a return decision if the individual is suspected of committing a crime without establishing that their conduct amounts to a threat to public security, providing that the offence is deemed sufficiently serious to justify terminating the individual's stay and there is consistent, objective and specific evidence to support suspicions.

Photo: Lana, July 2014, Flickr (CC)

This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is pusexblished but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.