With regard to the first question, the CJEU disagreed with the submissions of the Danish Government that the determination of the starting point of the entry ban period should be left to the discretion of each Member State. According to the Court, this would run counter to the purpose of giving an European dimension to the effects of national return measures.
With reference to the wording, general scheme and objectives of the Return Directive, the Court put forward that issuing a return decision, on the one hand, and an entry ban, on the other hand, must be regarded as separate decisions. In this manner, until the point in time at which the return is voluntarily complied with or enforced, the illegal stay of the person concerned is governed by the return decision and not by the entry ban. It is only when the person concerned has actually left the territory of the Member States that the entry ban period must begin to run. If that period were to start running before the day the person concerned has actually left the territory of the Member States, a third-country national who refuses to comply with the obligation to return and to cooperate in a removal procedure would be able to avoid, in whole or in part, the legal effects of an entry ban.
While the Court reiterated that a Member State may not impose criminal sanctions for breach of an entry ban coming within the scope of the Return Directive unless the continuation of the effects of that ban complies with Article 11 of that Directive (see C-290/14 Celaj and C-297/12 Filev and Osmani), in the case of Ouhrami the obligation to return was never fulfilled. Therefore, his unlawful situation was a consequence of an initial illegal stay, and not of a subsequent illegal stay resulting from breaching an entry ban.
The CJEU did not proceed with answering the second question as this was only posed in case the starting point of the duration of an entry ban should be anything other than the day the person has actually left the territory of the Member States.