CJEU - C 249/13 / Judgment Khaled Boudjlida v Préfet des Pyrénées-Atlantiques

Key facts of the case:
 
(Reference for a preliminary ruling — Visas, asylum, immigration and other policies related to free movement of persons — Directive 2008/115/EC — Return of illegally staying third-country nationals — Principle of respect for the rights of the defence — Right of an illegally staying third-country national to be heard before the adoption of a decision liable to affect his interests — Return decision — Right to be heard before the return decision is issued — Extent of that right)
 
Results (sanctions) and key consequences of the case:
 
73. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
 
On those grounds, the Court (Fifth Chamber) hereby rules:
 
The right to be heard in all proceedings, as it applies in the context of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, and, in particular, Article 6 of that directive, must be interpreted as extending to the right of an illegally staying third-country national to express, before the adoption of a return decision concerning him, his point of view on the legality of his stay, on the possible application of Articles 5 and 6(2) to (5) of that directive and on the detailed arrangements for his return.
 
However, the right to be heard in all proceedings, as it applies in the context of Directive 2008/115, and, in particular, Article 6 of that directive, must be interpreted as meaning that it does not require a competent national authority to warn the third-country national, prior to the interview arranged with a view to that adoption, that it is contemplating adopting a return decision with respect to him, or to disclose to him the information on which it intends to rely as justification for that decision, or to allow him a period of reflection before seeking his observations, provided that the third-country national has the opportunity effectively to present his point of view on the subject of the illegality of his stay and the reasons which might, under national law, justify that authority refraining from adopting a return decision.
 
The right to be heard in all proceedings, as it applies in the context of Directive 2008/115, and, in particular, Article 6 of that directive, must be interpreted as meaning that an illegally staying third-country national may have recourse, prior to the adoption by the competent national authority of a return decision concerning him, to a legal adviser in order to have the benefit of the latter’s assistance when he is heard by that authority, provided that the exercise of that right does not affect the due progress of the return procedure and does not undermine the effective implementation of Directive 2008/115.
 
However, the right to be heard in all proceedings, as it applies in the context of Directive 2008/115, and, in particular, Article 6 of that directive, must be interpreted as meaning that it does not require Member States to bear the costs of that assistance by providing free legal aid.
Paragraphs referring to EU Charter: 

 

30. Since the referring court referred in its first question to the right to be heard in relation to Article 41 of the Charter, it must be recalled that, in accordance with the Court’s settled case-law, observance of the rights of the defence is a fundamental principle of EU law, in which the right to be heard in all proceedings is inherent (the judgments in Kamino International Logistics, C‑129/13, EU:C:2014:2041, paragraph 28, and Mukarubega, EU:C:2014:2336, paragraph 42).

31. The right to be heard in all proceedings is now affirmed not only in Articles 47 and 48 of the Charter, which ensure respect for both the rights of the defence and the right to fair legal process in all judicial proceedings, but also in Article 41 of the Charter, which guarantees the right to good administration. Article 41(2) of the Charter provides that the right to good administration includes, inter alia, the right of every person to be heard before any individual measure which would affect him adversely is taken (the judgments in Kamino International Logistics, EU:C:2014:2041, paragraph 29, and Mukarubega, EU:C:2014:2336, paragraph 43).

32. As the Court stated in paragraph 67 of the judgment in YS and Others (C‑141/12 and C‑372/12, EU:C:2014:2081), it is clear from the wording of Article 41 of the Charter that it is addressed not to the Member States but solely to the institutions, bodies, offices and agencies of the European Union (see, to that effect, the judgment in Cicala, C‑482/10, EU:C:2011:868, paragraph 28).

33. Consequently, an applicant for a resident permit cannot derive from Article 41(2)(a) of the Charter a right to be heard in all proceedings relating to his application (the judgment in Mukarubega, EU:C:2014:2336, paragraph 44).