CJEU: Interpretation of the Return Directive in light of the Zaizoune judgment

Date: 
Thursday, October 8, 2020

On 8 October 2020, the CJEU answered a question referred for preliminary ruling concerning the interpretation of the Return Directive (2008/115/EC). The request was made in proceedings between MO and the Provincial Representation of the Government for Toledo in Spain and concerned MO’s illegal stay in Spain. 

A removal order was issued against MO by the Government’s representative, relying on case-law from the Supreme Court of Spain, which authorises removals in cases where the illegal stay is accompanied by the negative conduct of the person. The Government’s representative submitted that the negative conduct related to the fact that MO had not provided proof of entrance to Spain via a border post, had not indicated the duration of his stay in Spain and possessed no identity documents. The referring court considers that the Government representative had wrongly stated that there was a negative element in MO’s conduct as he had produced a valid passport, a visa to enter Spain, residence permits up to 2013 and that he had established family and social ties in Spain. In light of the CJEU’s judgment in Zaizoune, which considered the same national legislation, the referring court was unsure of its consequences on the assessment of MO’s case. 

Given that no negative conduct was evidenced, the referring court, in essence, asked the CJEU whether the Return Directive must be interpreted as meaning that, where national legislation makes provision for a fine or removal of a third country national staying illegally on a Member State’s territory, and a removal may only be adopted if there are aggravating circumstances concerning that third country national that are additional to his or her illegal stay, national authorities may rely directly on the provisions of the Return Directive and to enforce that decision, even in the absence of such aggravating circumstances. 

Drawing a distinction between Zaizoune and the main proceedings, the CJEU noted that when interpreting domestic law, national courts are required to do so within the limits established by general principles of EU law and in a manner, insofar as possible, in accordance with the wording and purpose of the directive concerned. The CJEU emphasized that a Directive cannot impose obligations on an individual, since a provision of a Directive may not be relied upon as such by a Member State against an individual. It found that, with respect to MO, the Spanish authorities could not solely rely on the Return Directive to adopt and enforce a return decision, even in the absence of aggravating circumstances. 

The CJEU ruled that the Return Directive must be interpreted as meaning that where national legislation provides a fine or a removal, in the event of a third country national staying illegally in the Member State territory and the option for removal may only be adopted where there are aggravating circumstances concerning that person, the competent national authority may not rely on the provisions of the Returns Directive in order to adopt and enforce a return decision, even in the absence of aggravating factors.


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 published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.                               

Keywords: 
Return