MO v Subdelegacion del Gobierno en Toledo [Spain]
CJEU rules on the removal of third country national from Spain
The case concerned a question from Spanish national authorities regarding conditions for removal of illegally staying third country nationals, in application of the Return Directive.
On 14 January 2017, a removal procedure was initiated against MO, a Columbian national, on grounds of alleged illegal presence on Spanish territory (Article 53 par. 1 let. a of the Law on foreign nationals). MO presented a residence permit valid until 2013, a valid passport valid until 24 December 2018, a registration certification and stated he entered Spain in 2009 under a visa accompanied by a residence permit issued for the purpose of family reunification with his mother.
On 3 February 2017, the Subdelegado del Gobierno en Toledo (Provincial Representative of the Government for Toledo, Spain) issued the removal order and a 5 years entry ban, based on case-law of the Tribunal Supremo (Supreme Court, Spain) that authorises removal orders in cases where illegal stay is accompanied with negative element in the conduct of the person. MO appealed the removal and the case was further brought before the Tribunal Superior de Justicia de Castilla-La Mancha (High Court of Justice of Castilla-La Mancha, Spain) following rejection by the lower court (Administrative Court, Toledo, Spain).
The Supreme Court considered that there was no indication in of a negative conduct of MO and referred the case to the CJEU with a preliminary question on whether the Return Directive must be interpreted as meaning that, where national legislation makes provision, in the event of a third-country national staying illegally in the territory of a Member State, for either a fine or removal, and the latter measure may be adopted only if there are aggravating circumstances concerning that national, additional to his or her illegal stay, the competent national authority may rely directly on the provisions of that directive in order to adopt a return decision and to enforce that decision, even in the absence of such aggravating circumstances.
The referring court asked the applicability of the Zaizoune judgment (C‑38/14, 23 April 2015) for a similar situation. In that case, the Court held that Directive 2008/115 must be interpreted as precluding legislation of a Member State which, in the event of third-country nationals staying illegally in the territory of that Member State, makes provision, depending on the circumstances, for either a fine or removal, the two measures being mutually exclusive.
Following the Zaizoune judgement, the Spanish Supreme Court held that as of 30 May 2019 the Spanish administrative and judicial authorities are entitled to refuse to apply the provisions of the Law on foreign nationals which provide that the imposition of a fine takes precedence and which require that a removal order is expressly justified by the presence of aggravating factors. Consequently, the national courts applied directly the provisions of the Return Directive, even if such reasoning was detrimental to the persons concerned.
Based on its established case law, the CJEU held that a directive cannot, of itself, impose obligations on an individual, since a provision of a directive may not be relied upon as such by a Member State against such an individual (Portgás, C‑425/12). The Court further concluded that the Return Directive must be interpreted as meaning that the competent national authority may not rely directly on the provisions of the directive in order to adopt a return decision and to enforce that decision, even in the absence of such aggravating circumstances. This is the case where national legislation makes provision, in the event of a third-country national staying illegally in the territory of a Member State, for either a fine or removal, and the latter measure may be adopted only if there are aggravating circumstances concerning that national, additional to his or her illegal stay.
European Union, Court of Justice of the European Union [CJEU], MO v Subdelegacion del Gobierno en Toledo [Spain], C‑568/19, EU:C:2020:807, 08 October 2020. Link redirects to the English summary in the EASO Case Law Database.