CJEU - C-430/11 Sagor

Directive 2008/115 concerns only the return of illegally staying third‑country nationals and is thus not designed to harmonise in their entirety the rules of the Member States on the stay of foreign nationals. Therefore, that directive does not preclude the law of a Member State from classifying an illegal stay as an offence and laying down criminal sanctions to deter and penalise such an infringement. However, a Member State may not apply criminal law rules which are liable to undermine the application of the common standards and procedures established by Directive 2008/115 and thus to deprive it of its effectiveness. Those standards and procedures would be undermined if, after establishing that a third‑country national is staying illegally, the Member State were to preface the implementation of the return decision, or even the adoption of that decision, with a criminal prosecution which could lead to a term of imprisonment during the course of the return procedure. Such a step would risk delaying the removal.

The Court observes that the return measures are not delayed or impeded by a criminal prosecution such as that brought against Mr Sagor, since the national legislation in question allows the return to be achieved regardless of that criminal prosecution, without that prosecution having come to an end. Nor is the imposition of a fine liable to impede the implementation of the return procedure. The possibility given to the criminal court of replacing the fine with an expulsion order accompanied by an entry ban as regards Italy, in situations where it is possible immediately to effect the return of the individual concerned, is also not contrary to that directive.

It should be noted that Article 7(4) of the directive allows the Member States to refrain from granting a period for voluntary departure, in particular where there is a risk that the person concerned may abscond in order to avoid the return procedure. Any assessment in that regard must be based on an individual examination of that person’s case.

The Member States are required, under their duty of loyalty and the requirements of effectiveness referred to in the directive, to carry out the removal as soon as possible. Where a fine is replaced by a home detention order, the Court finds that that order, imposed in the course of the return procedure, does not help to achieve the physical transportation of an illegally staying third-country national out of the Member State concerned. On the contrary, that home detention order may delay and impede measures such as deportation and forced return by air.