CJEU - C 383/13 / Opinion
Key facts of the case:

This request for a preliminary ruling, lodged by the Raad van State (Netherlands) on 5 July 2013, was made in proceedings between Messrs G. and R., two third-country nationals staying illegally in the Netherlands, and the Staatssecretaris van Veiligheid en Justitie (State Secretary for Security and Justice, ‘the Staatssecretaris’), concerning the legality of measures to extend their detention, adopted pursuant to Article 15(6) 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 (2) (‘the Return Directive’), in the light of Article 41(2)(a) of the Charter of Fundamental Rights of the European Union (‘the Charter’).

It is apparent from the request for a preliminary ruling that the substantive requirements for extending the detention measures imposed on Messrs G. and R. were met, as those measures were based on a lack of cooperation on the part of Messrs G. and R. with regard to their deportation and on the fact that the necessary documentation from third countries remained outstanding.

The referring court states, however, that the rights of defence of Messrs G. and R. were infringed in the course of the preparation of those measures.

The question raised in the present request for a preliminary ruling concerns the scope of the right, affirmed in Article 41(2)(a) of the Charter, of every person to be heard before any individual measure which would affect him or her adversely is taken, and, in particular, the legal consequences of infringement of that right.

The referring court raises the issues, first, of whether infringement by the national administrative authority of the general principle of respect for the rights of the defence in the course of the preparation of a measure extending detention within the terms of Article 15(6) of the Return Directive automatically and in all cases means that the detention must be lifted and, secondly, of the possible scope for weighing up, on the one hand, the adverse effects on the interests of the person concerned as a result of such infringement and, on the other, the interests of the Member State served by the measure extending the detention.

Results (sanctions) and key consequences of the case:

In the light of all the foregoing considerations, I propose that the question referred for a preliminary ruling by the Raad van State should be answered as follows:

An infringement by the national administrative authority, in the course of the preparation of a measure extending detention within the terms of Article 15(6) 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, of the right for every person to be heard before any individual measure which would affect him or her adversely is taken, as affirmed in Article 41(2)(a) of the Charter of Fundamental Rights of the European Union, means that the measure must be annulled and that the person concerned must be released immediately in accordance with Article 15(2) of that directive.

As a subsidiary point, it is to be inferred from the case-law of the Court concerning the consequences under EU law of an infringement of the right to be heard that, in cases such as those at issue in the main proceedings, the contested decisions extending detention must be annulled and the third-country nationals who have been detained must be released.
Paragraphs referring to EU Charter

42-65