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CJEU - C 249/11 / Opinion

Hristo Byankov v Glaven sekretar na Ministerstvo na vatreshnite raboti

Deciding Body type:
Court of Justice of the European Union
Deciding Body:
Opinion of Advocate general
Decision date:
Key facts of the case:
  1. The Court of Justice of the European Union has already had occasion to rule on the compatibility with European Union law of measures consisting in a prohibition on leaving the territory imposed by a Member State on one of its nationals because he owes a tax debt classified under national law as ‘considerable’. (2) In the present reference for a preliminary ruling the Court is requested to rule in a situation in which the debt is owed not to the national exchequer but to a private legal person. It is also asked about the circumstances in which European Union law requires national courts to review the legality of a final administrative act which has not been contested before the courts, on the ground that it is contrary to European Union law.
Results (sanctions) and key consequences of the case:
  1. European Union law precludes a legislative provision of a Member State which allows an administrative authority to prohibit a national of that State from leaving that State solely on account of a debt, regarded by national law as being considerable, which he owes to a private legal person where the aim of the measure at issue is not to respond to a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society and where the objective thus sought serves only economic ends. In any event, even if a prohibition on leaving the territory such as that imposed on Mr Byankov in the case in the main proceedings had been adopted under the conditions laid down in Article 27(1) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, Article 27(2) of that directive precludes such a measure where it is based solely on the existence of the debt without any specific assessment of the personal conduct of the person concerned and no reference is made to any threat which that conduct might constitute as regards public policy. It is for the national court to determine whether or not that is the case in the main proceedings.
  2. European Union law precludes a legislative provision of a Member State under which the administrative procedure which has resulted in the adoption of an act which has become final and has not been contested before the courts can be reopened, where that act is contrary to European Union law, only within a period of one month from the adoption of that act and only on the initiative of the administrative authority which adopted the act, the public prosecutor or the ombudsman, thus rendering excessively difficult or impossible in practice the exercise of rights conferred by European Union law.