Judges E Regan, J-C Bonichot (Rapporteur), A Arabadjiev, CG Fernlund
Advocate General M Szpunar
The applicant, Mr Ovidiu-Mihăiţă Petrea, a Romanian national, was convicted of a crime in Greece and sentenced to suspended term of imprisonment. In October 2011 the Greek administration, first, ordered his return to Romania on the ground that he constituted a serious threat to public policy and public security, and, secondly, entered him in the national register of undesirable aliens and in the Schengen Information System until October 2018, with the effect of denying him entry onto the territory until that date. That decision stated that the applicant had been sent an information bulletin for foreigners subject to exclusion, informing him, in a language he understood, of his rights and redress available to him, and of the possibility of requesting a translation of the main parts of the return order. The applicant declared that he had waived all legal remedies and confirmed that he wished to return to his country of origin, following which his removal took place. In September 2013 the applicant returned to Greece and was granted a certificate of registration as a Union citizen. Nevertheless, after having discovered that the applicant was still subject to an exclusion order, the police authorities withdrew that certificate and ordered his return to Romania. The applicant sought judicial review of that decision, in the context of which he claimed not only that he had not been notified in a language he understood of the exclusion order October 2011, in infringement of the requirements of article 30 of Parliament and Council Directive 2004/38/EC, but also that he no longer, in any event, posed a danger to public policy and public security. The action was dismissed and the court held that the applicant could not rely on the unlawfulness of the exclusion order of October 2011. On the applicant’s action, the Greek referring court decided to stay proceedings and to refer to the Court of Justice of the European Union for a preliminary ruling a number of questions on the interpretation of, inter alia, articles 27, 28, 30, and 32 of Directive 2004/38/EC and article 6(1) of Parliament and Council Directive 2008/115/EC.
Article 27(1) of Directive 2004/38 provided for member states to restrict the freedom of movement and residence of a Union citizen or a member of his family, irrespective of nationality, on grounds of public policy, public security or public health. Article 27(2) stated that the conduct of the person concerned had to represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Article 28(1) required the competent authorities to take account of various considerations, such as how long the individual concerned had resided on its territory. According to article 30 of that Directive, applicants had to be notified in writing of any decision taken under article 27(1), in such a way that they were able to comprehend its content and the implications for them. Article 32(1) stated that persons subject to an exclusion order could submit an application for lifting of that order after a reasonable period. Article 32(2) stated, however, that those persons had “no right of entry to the territory” of the member state concerned while their application was being considered. Article 6(1) of Directive 2008/115 provided that member states had to issue a return decision to any third-country national staying illegally on their territory.
On the reference—
Held, (1) since, in the present case, the Greek authorities had justified the withdrawal of the applicant’s registration certificate by legitimate reasons, in particular by the fact that it was issued in error, neither Parliament and Council Directive 2004/38/EC nor the principle of the protection of legitimate expectations precluded such a withdrawal. Articles 27(1), (2) and 28(1), which covered all expulsion decisions, applied in particular to exclusion decisions which were expressly referred to by article 32 of the Directive 2004/38. Although Directive 2004/38 did not contain specific provisions relating to situations in which a person who was subject to such an exclusion re-entered the member state concerned in infringement thereof, it resulted from the entirety of that Directive that the competent authorities possessed the power to ensure compliance therewith. It was apparent from the wording of article 32, that Directive 2004/38 did not prevent a member state from adopting a return decision in relation to a person who had applied for the lifting of the exclusion order imposed on him, in accordance with article 32(1), as long as the examination of that application had been concluded with a successful outcome for the applicant. The same was the case where, as in the present case, the applicant had re-entered the member state concerned without having applied for the lifting of the exclusion order imposed on him. Further, it followed from the very nature of an exclusion order that it remained in force as long as it had not been lifted and the mere finding that it had been infringed allowed the authorities to adopt a new removal decision against the person concerned. Accordingly, Directive 2004/38 and the protection of legitimate expectations did not preclude a member state from, first, withdrawing a registration certificate wrongly issued to a EU citizen who was still subject to an exclusion order, and, secondly, adopting a removal order against him based on the sole finding that the exclusion order was still valid (judgment, paras 37, 38, 41, 42, 46–49, operative part, para 1).
(2) Directive 2004/38 and Parliament and Council Directive 2008/115/EC did not preclude a decision to return a EU citizen, such as that in issue, from being adopted by the same authorities and according to the same procedure as a decision to return a third-country national staying illegally, referred to in article 6(1) of Directive 2008/115, provided that the transposition measures of Directive 2004/38 which were more favourable to that EU citizen were applied (judgment, para 56, operative part, para 2).
(3) The principle of effectiveness did not preclude a legal practice according to which a national of a member state who was subject to a return order, in circumstances such as those in issue, could not rely, in support of an action against that order, on the unlawfulness of the exclusion order previously adopted against him, in so far as the person concerned had the possibility to contest that latter order in good time in the light of the provisions of Directive 2004/38 (judgment para 65, operative part, para 3).
(4) Article 30 of Directive 2004/38 required the member states to take every appropriate measure with a view to ensuring that the person concerned understood the content and implications of a decision adopted under article 27(1) of that Directive, but it did not require that decision to be notified to him in a language he understood or which it was reasonable to presume he understood, although he did not bring an application to that effect (judgment para 72, operative part, para 4).
S Dima and A Muntean for the applicant.
D Katopodis and A Magrippi, agents, for the Greek Government.
Ben Lask (instructed by The Treasury Solicitor) for the United Kingdom Government.
C Pochet and L Van den Broeck, agents, for the Belgian Government.
S Wolff and C Thorning, agents, for the Danish Government.
E Montaguti and M Konstantinidis, agents, for the European Commission.