(Reference for a preliminary ruling — Directive 2004/38/EC — Directive 2008/115/EC — Right to move and reside freely in the territory of the Member States — Residence of a national of a Member State within the territory of another Member State despite a prohibition on entering that State — Lawfulness of a decision to withdraw a registration certificate and a further expulsion decision — Possibility to rely, exceptionally, on the unlawfulness of an earlier decision — Translation obligation)
SOURCE: Court of Justice of the European Union, Annual report 2017
In its judgment in Petrea delivered on 14 September 2017, the Court ruled on the application of Directive 2004/38 where a person who is the subject of an order excluding him from a Member State re-enters the Member State concerned in infringement of that order. In the instant case, the Greek authorities had issued an expulsion decision accompanied by an entry ban against a Romanian national in 2011 on the ground that he constituted a serious threat to public policy and public security. In 2013, the person concerned returned to Greece where he submitted an application for a certificate of registration as a Union citizen, which was granted to him. After discovering that the person concerned was still subject to an exclusion order, the Greek authorities decided to withdraw that certificate and, again, order his return to Romania. The person concerned challenged that decision.
The Court recalled that the grant of a residence permit to a national of a Member State is to be regarded not as a measure giving rise to rights, but as a measure by a Member State serving to prove the individual position of a national of another Member State with regard to provisions of EU law. Only a declaratory character attaches, therefore, to such a registration certificate, with the result that the issue of that document cannot, in itself, give rise to a legitimate expectation on the part of the person concerned in his right to stay on the territory of the Member State concerned. Furthermore, Member States are able, under Article 27(1) of Directive 2004/38, to restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. According to the Court, it follows from the very nature of an exclusion order that it remains in force as long as it has not been lifted. Consequently, the mere finding that it has been infringed allows the competent authorities to adopt a new expulsion decision. The Court therefore held that Directive 2004/38 and the protection of legitimate expectations do not preclude the withdrawal of the person concerned’s residence permit or the taking of a further expulsion decision against him in the circumstances of the case.
The Court also ruled on whether the principle of effectiveness precludes a legal practice according to which a national of a Member State who is subject to a return order may not rely, in support of an action against that order, on the unlawfulness of the exclusion order previously adopted against him. The Court recalled that, in the absence of EU rules, the Member States are responsible for determining the rules of procedure governing court actions, but those rules must not be such as to render virtually impossible or excessively difficult the exercise of those rights. In the instant case, EU law in no way precludes national legislation from providing that it is not possible to rely, against an individual measure, such as a return decision, on the unlawfulness of an exclusion order which has become final, either because the time limit for bringing an action against that order expired or because the action brought against it was dismissed. However, the Court made clear that the person concerned must have had the possibility to contest effectively that order in good time in the light of the provisions of Directive 2004/38.
Lastly, as regards the question whether Article 30 of Directive 2004/38 requires a decision adopted under Article 27(1) of that directive to be notified to the person concerned in a language he understands, although he did not bring an application to that effect, the Court stated that the Member States are required to take every appropriate measure to ensure that the person concerned understands the content and implications of a decision restricting his rights of entry or residence for reasons of public policy, public security or public health. However, it does not require that decision to be notified to him in a language he understands or which it is reasonable to assume he understands, even though he did not bring an application to that effect.