Court of Justice of the European Communities (including Court of First Instance Decisions)

Provisional text

OPINION OF ADVOCATE GENERAL

RANTOS

delivered on 10 February 2021 (1)

Case C‑719/19

FS

v

Staatssecretaris van Justitie en Veiligheid

(Request for a preliminary ruling from the Raad van State (Council of State, Netherlands))

(Reference for a preliminary ruling – Citizenship of the Union – Article 21 TFEU – Right of citizens of the Union and their family members to move and reside freely within the territory of the Member States – Directive 2004/38/EC – Article 15 – Decision restricting free movement on grounds other than public policy, public security or public health – Illegal residence of a Union citizen in the host Member State – Expulsion decision – Physical departure of the Union citizen from the host Member State – Temporal effects of the expulsion decision – Articles 5, 6 and 7 – Possibility of the Union citizen enjoying a new right of entry or of residence on his or her return to the host Member State)

I.      Introduction

1.        Can a Union citizen, who has lost the right to reside in the territory of a Member State of which he or she is not a national and who, on that ground, has been the subject of an expulsion decision pursuant to Article 15(1) of Directive 2004/38/EC (2) (‘the Residence Directive’), rely on a new right of residence under that directive in the event of his or her immediate return to that Member State after leaving its territory in accordance with that expulsion decision? If not, for how long must that citizen reside outside the territory of the Member State before being able to obtain a new right of residence in that same Member State?

2.        Those are the questions raised by the present case, which will lead the Court to specify when the legal effects of an expulsion decision taken ‘on grounds other than public policy, public security or public health’ within the meaning of Article 15(1) of the Residence Directive are exhausted and under what circumstances a Union citizen can, therefore, obtain a right of residence in the host Member State again.

3.        Those questions will enable the Court to rule, for the first time, both on the temporal effects of such an expulsion decision and, more generally, on the relationship between Article 15, on the one hand, and Article 5 (right of entry), Article 6 (right of residence for up to three months) and, lastly, Article 7 of that directive (right of residence for more than three months), on the other hand. (3)

4.        There are no clear answers to those questions. First, the questions highlight the delicate balance to be struck between two rights that are not easily reconcilable: the right of Union citizens to reside freely within the territory of the Union and the right of the Member States to expel from their territory persons who do not have the right to reside there. Second, those same questions fall within the specific legal context of the absence of controls at the internal borders of the Union, (4) which is difficult to reconcile with the very concept of the ‘expulsion’ of a Union citizen from one Member State to another.

5.        In this Opinion, I will set out the reasons that support my proposed answers, which may be summarised as follows:

–        the legal effects of an expulsion decision taken on the basis of Article 15(1) of the Residence Directive cannot be extinguished merely by the Union citizen physically leaving the territory of the host Member State, because this would undermine the practical effect of that directive;

–        the proposal consisting in prolonging, systematically, the effects of an expulsion decision for a certain period after the physical departure of the person concerned, in particular for at least three months, would impose an unjustified restriction on the right of residence, as enshrined in Article 21 TFEU and given concrete expression in that directive; and

–        it is for the authorities of the host Member State to assess the temporal effects of expulsion decisions taken on the basis of Article 15 of the Residence Directive, and a fortiori the possibility of relying on a new right of residence, based on an in-depth examination of the situation of the person concerned, taking into account all the relevant circumstances and, in particular, the existence of an actual, genuine purpose for his or her residence in that Member State and the risk of that person being an unreasonable burden on the social assistance system of the Member State.

II.    Legal context

A.      EU law

6.        Recital 16 of the Residence Directive states that ‘as long as the beneficiaries of the right of residence do not become an unreasonable burden on the social assistance system of the host Member State they should not be expelled. Therefore, an expulsion measure should not be the automatic consequence of recourse to the social assistance system. … In no case should an expulsion measure be adopted against workers, self-employed persons or job-seekers as defined by the Court of Justice save on grounds of public policy or public security’.

7.        Article 5(1) of that directive affords, inter alia, to Union citizens with a valid identity card or passport a right of entry to the territory of the Member States.

8.        Article 6(1) of the directive affords Union citizens a right of residence in the territory of another Member State for a period of up to three months ‘without any conditions or any formalities other than’ that of holding a valid identity card or passport.

9.        Article 7(1) of the same directive affords Union citizens a right of residence in the territory of another Member State for a period of longer than three months if they: (a) are workers or self-employed persons in the host Member State, or (b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of that Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State, or (c) are students and satisfy, in essence, the same conditions as those set out in point (b).

10.      Article 14(1) and (2) of the Residence Directive states that Union citizens and their family members are to have the right of residence provided for in Article 6 of that directive as long as they do not become an unreasonable burden on the social assistance system of the host Member State, and the right of residence provided for in Articles 7, 12 and 13 of the directive as long as they meet the conditions set out therein. By way of derogation from those provisions, Article 14(4) of the same directive provides that an expulsion measure may in no case be adopted against those Union citizens if they are (a) workers or self-employed persons, or (b) if they entered the territory of that Member State in order to seek employment.

11.      Article 15 of the Residence Directive, which is entitled ‘Procedural safeguards’, provides, in paragraph 1 thereof, that ‘the procedures provided for by Articles 30 and 31 shall apply by analogy to all decisions restricting free movement of Union citizens and their family members on grounds other than public policy, public security or public health’. Under paragraph 2 of that article, ‘expiry of the identity card or passport on the basis of which the person concerned entered the host Member State … shall not constitute a ground for expulsion from the host Member State’. Lastly, paragraph 3 of the article provides that ‘the host Member State may not impose a ban on entry in the context of an expulsion decision to which paragraph 1 applies’.

12.      Article 30(3) of that directive provides that ‘the notification [of any decision taken under Article 27(1) of the Residence Directive] shall specify …, where applicable, the time allowed for the person to leave the territory of the Member State. Save in duly substantiated cases of urgency, the time allowed to leave the territory shall not be less than one month from the date of notification’.

B.      Netherlands law

13.      The Vreemdelingenwet 2000 (Law on Foreign Nationals 2000) of 23 November 2000 (Stb. 2000, No 495) provides, in Articles 61 and 62 thereof, that a foreign national who is not, or who is no longer, legally resident must leave the Netherlands on his or her own initiative within a period of four weeks from the end of his or her legal residence. Article 63(1) of that law provides that a foreign national who is not legally resident and who has not left the Netherlands on his or her own initiative within that period may be expelled.

III. The dispute in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court

14.      FS, the appellant in the main proceedings, is a Polish citizen who, on 9 November 2017, was registered in the Non Residents’ Register of the Netherlands. (5)

15.      By decision of 1 June 2018, the Staatssecretaris van Justitie en Veiligheid (State Secretary for Justice and Security, Netherlands; ‘the State Secretary’) found that FS was not legally resident because he no longer satisfied the conditions laid down in Article 7 of the Residence Directive relating to the right of residence for more than three months, (6) and ordered him to leave the territory of the Netherlands. In that regard, account was taken of the fact that FS had been fairly regularly arrested by the police on suspicion of shoplifting and pick-pocketing.

16.      By decision of 25 September 2018, the State Secretary declared the objection raised by FS against the decision of 1 June 2018 to be unfounded. On the one hand, the State Secretary acknowledged that FS’s conduct did not represent a danger for public policy or public security within the meaning of Article 27 of the Residence Directive, but, on the other hand, set a four-week deadline for voluntary departure, after which FS could be expelled by virtue of his illegal residence. The referring court explains that that expulsion decision constitutes a ‘decision restricting free movement of Union citizens’ within the meaning of Article 15(1) of that directive. Since FS did not lodge an appeal against the decision, it became final (‘the expulsion decision’).

17.      On 23 October 2018, FS was arrested by the German police on suspicion of shoplifting. The parties to the main proceedings are in agreement that FS demonstrated that he left the Netherlands within the four-week departure period imposed on him, that is to say, before 24 October 2018. In that regard, FS also stated that, since his departure, the exact date of which is unclear from the case file, he had been residing with friends in Kaldenkirchen (Germany), just over the border between the Netherlands and Germany. FS also stated that, owing to his dependence on marijuana, he travelled to the Netherlands on a daily basis to purchase it. Lastly, he stated that he entered the Netherlands on 21 November 2018 because he had been summoned to appear before a police court on 23 November 2018.

18.      On 22 November 2018, FS was apprehended by the staff at a supermarket in the Netherlands on suspicion of theft. Having been called to the premises, the police then arrested him because he was unable to produce any ID. Further to that arrest, FS was detained by the police for the purposes of a hearing, as provided for by national law in such cases.

19.      By decision of 23 November 2018, the State Secretary placed FS in administrative detention with a view to returning him to his country of origin, Poland (‘the administrative detention decision’). The grounds stated for that decision were the risk of FS evading the control of foreign nationals or avoiding or impeding preparations for his departure or the expulsion procedure. That risk arises from the fact that FS, first, had evaded the control of foreign nationals for some time, second, had been the subject of an expulsion decision requiring him to leave the territory of the Netherlands and had not complied with it within the period prescribed therein, (7) third, had no fixed address or residence, fourth, did not have sufficient resources and, fifth, was suspected of having committed an offence or had been convicted of so doing.

20.      By judgment of 7 December 2018, the rechtbank Den Haag, zittingsplaats Groningen (District Court, The Hague, sitting in Groningen, Netherlands), declared the action brought by FS against the administrative detention decision to be unfounded and dismissed his claim for damages. FS lodged an appeal against that judgment before the Raad van State (Council of State, Netherlands).

21.      On 18 December 2018, FS raised an objection against the decision to remove him to Poland, which was scheduled for 21 December 2018. He also requested that the voorzieningenrechter van de rechtbank Den Haag (court hearing applications for interim measures, The Hague, Netherlands) adopt an interim measure to prohibit that removal.

22.      By decision of 20 December 2018, the voorzieningenrechter van de rechtbank Den Haag (court hearing applications for interim measures, The Hague), first, upheld the application for an interim measure, taking the view that it had not been established that FS was, at that time, residing illegally in the Netherlands and, second, prohibited the State Secretary from expelling FS before the expiry of a four-week period from the decision of the State Secretary on the objection.

23.      By decision of the same day and on the basis of that decision of the voorzieningenrechter van de rechtbank Den Haag (court hearing applications for interim measures, The Hague), the State Secretary rescinded FS’s placement in administrative detention.

24.      According to the referring court, despite the lifting of FS’s administrative detention, FS retains an interest in lodging an appeal before the Raad van State (Council of State) because he would be entitled to damages if that detention were to be deemed unlawful. That would be the case if, on 23 November 2018 (the date on which he was placed in administrative detention), FS had a right of residence in the Netherlands on the basis of EU law.

25.      In that regard, in the appeal proceedings before the Raad van State (Council of State), the parties to the main proceedings have adopted two opposing positions.

26.      On the one hand, FS criticises the rechtbank Den Haag, zittingsplaats Groningen (District Court, The Hague, sitting in Groningen), for having failed to substantiate properly its judgment of 7 December 2018, since he had in fact left the Netherlands within the period prescribed in the expulsion decision and, therefore, on the day on which he was placed in administrative detention, he was entitled to reside in the Netherlands once more under Article 6 of the Residence Directive.

27.      On the other hand, the State Secretary accepts that FS demonstrated that he left the Netherlands within the period prescribed in the expulsion decision, but states that the legal effects of that decision were not exhausted and that, therefore, FS could not have a right of residence in the Netherlands once again. According to the State Secretary, those legal effects would have been exhausted only if, in accordance with the case-law of the Court, (8) FS had settled in another Member State pursuant to and in conformity with the conditions set out in Article 7(1) of the Residence Directive and could demonstrate ‘genuine residence’ in that other Member State for a period of more than three months. However, in view of the statements made by FS regarding his residence in Germany, that is not the case. In the State Secretary’s view, this is the only interpretation capable of preventing the abuse of rights, since otherwise it would have been sufficient for FS to stay in Germany for just one day in order for the legal effects of the expulsion decision to be thwarted and, in that way, return and reside legally in the Netherlands once more.

28.      In that regard, the referring court notes that, since it is now agreed that FS left the territory of the Netherlands within the period prescribed in the expulsion decision, the question of whether he was rightly placed in administrative detention turns on whether he had a right of residence in the Netherlands once again on that date, specifically under Article 6 of the Residence Directive. That right depends, in turn, on the legal effects produced by the expulsion decision within the meaning of Article 15 of that directive. The referring court points out that it is unclear both from the wording of Article 15 of the directive and from its scheme whether an expulsion decision continues to have legal effects for a certain period after the person concerned has left the host Member State or whether such a decision must be regarded as having been complied with fully from the time of that departure.

29.      It is in those circumstances that the Raad van State (Council of State) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)      Must Article 15(1) of [the Residence Directive] be interpreted as meaning that the decision to expel a Union citizen from the territory of the host Member State taken on the basis of that provision has been complied with and that that decision no longer has any legal effects once that Union citizen has demonstrably left the territory of that host Member State within the period for voluntary departure laid down in that decision?

(2)      If the first question must be answered in the affirmative, does that Union citizen, in the event of an immediate return to the host Member State, have the right of residence of up to three months referred to in Article 6(1) of [the Residence Directive], or may the host Member State take a new expulsion decision in order to prevent the Union citizen from entering the host Member State for a short period of time?

(3)      If the first question must be answered in the negative, must that Union citizen in that case then reside outside the territory of the host Member State for a certain period of time and, if so, how long is that period?’

30.      Written observations were lodged by FS, the Netherlands, Czech and Danish Governments and the European Commission. With the exception of the Czech Government, those parties also all presented oral argument at the hearing held on 16 November 2020. The Belgian Government, which had not lodged written observations, was also able to present its arguments at that hearing.

IV.    Analysis

A.      Preliminary observations

31.      The background to this reference for a preliminary ruling is a dispute concerning a Polish citizen, FS, who, having lost his right of residence in the Netherlands under Article 7 of the Residence Directive, was the subject of an expulsion decision, pursuant to Article 15(1) of that directive. Having left that Member State voluntarily within the period prescribed in that expulsion decision, that citizen claims to have resided with friends in Germany near the border with the Netherlands, to which he travelled daily to purchase marijuana. One month after his departure, he was arrested by the Netherlands police because he was unable to produce any ID and placed in administrative detention with a view to removal to his country of origin on the ground that he posed a risk of evading the control of foreign nationals and avoiding or impeding preparations for his removal. That risk is said to stem inter alia from the fact that the citizen has not, in essence, complied fully with the expulsion decision, because he has failed to demonstrate that he genuinely resided in another Member State.

32.      It is in that context that the referring court seeks to ascertain, in essence, whether an expulsion decision taken pursuant to Article 15(1) of the Residence Directive is complied with fully merely because the Union citizen physically leaves the territory of the host Member State, in which case that citizen would enjoy, if he or she were to return, a new right of residence for up to three months under Article 6 of the Residence Directive, or whether that expulsion decision continues to have effects for a certain time after the citizen’s physical departure. In the latter case, the referring court wishes to know for how long such effects continue to be produced.

33.      The referring court explains that answers to those questions are crucial to settling the dispute in the main proceedings, which concerns the legality of the administrative detention decision. If the legal effects of the expulsion decision were to be exhausted merely by virtue of the fact that FS went to Germany, even if only for one day, then, from his return to the Netherlands, he would enjoy a new right of residence under Article 6 of the Residence Directive. In the absence of a new expulsion decision, the administrative detention decision would be unlawful and FS would therefore be entitled to damages.

34.      However, the interest presented by the questions goes beyond the somewhat unusual facts of the present case. Indeed, the questions referred for a preliminary ruling form part of a much broader issue, namely how a Member State can in fact expel from its territory (on grounds other than public policy, public security or public health) a Union citizen who, after a period of legal residence, continues to reside there without however satisfying the conditions laid down in the Residence Directive, at the risk of becoming an unreasonable burden on the social assistance system of that Member State. That issue is all the more relevant since, within the Schengen area, (9) internal borders may be crossed without checks being carried out on individuals. Accordingly, a Member State has very limited means of verifying that the expulsion of an illegal residing Union citizen has indeed taken place.

35.      In the light of those findings, analysis of the temporal effects of an expulsion decision taken pursuant to Article 15(1) of the Residence Directive appears intrinsically linked to the relationship between that provision and the other provisions of Chapter III of that directive, which relate to the right of residence. I therefore consider it appropriate, before beginning my analysis, to present an overview of the applicable legislative context (1.), which will also help to clarify the scope of the questions submitted by the referring court for a preliminary ruling (2.).

1.      The relevant legislative context

36.      As a preliminary point, it should be recalled that citizenship of the Union – as introduced by the Treaty of Maastricht (10) – confers on every Union citizen a fundamental and individual right to move and reside freely within the territory of the Member States, subject to the limitations and restrictions laid down by the Treaties and the measures adopted for their implementation. That right is currently conferred on Union citizens by Article 21(1) TFEU, as reaffirmed in Article 45 of the Charter of Fundamental Rights of the European Union. The Residence Directive, which governs inter alia the conditions for exercise of the right of Union citizens and their family members to move and reside freely within the territory of the Member States, aims to facilitate and strengthen the exercise of that right. (11)

37.      The Residence Directive provides for two sets of rules of residence for Union citizens: the ‘right of residence’, governed by the provisions of Chapter III and including the rights of residence ‘for up to three months’ and ‘for more than three months’ (jointly, ‘temporary residence’), and the ‘right of permanent residence’ governed by the provisions of Chapter IV, the conditions of eligibility for which are set out in Articles 16 to 18 of that directive. In what follows, I will deal only with temporary residence, the type of residence at issue here, which will allow the grounds justifying an expulsion decision within the meaning of Article 15 of the directive to be identified.

(a)    The right of temporary residence provided for in the Residence Directive

(1)    The right of residence for up to three months

38.      Pursuant to Article 6(1) of the Residence Directive, Union citizens have the right of residence on the territory of another Member State for up to three months without being subject to any conditions or formalities other than the requirement to hold a valid identity card or passport. Although Article 6 of that directive does not lay down any condition linked to the financial resources of the Union citizen, under Article 14(1) of that directive that right of residence is retained for those three months as long as that citizen does not become an unreasonable burden on the social assistance system of that Member State. (12) That rule is consistent with Article 24(2) of the same directive, which allows the host Member State, inter alia, not to confer entitlement to social benefits for the first three months’ residence.

39.      As regards the verification of those conditions of residence, although that Member State cannot require Union citizens to register with the relevant authorities, (13) it is however entitled to require such citizens to produce evidence of their identity and nationality, provided that that requirement is imposed on its own nationals as regards their identity card. (14) Nevertheless, the Member State cannot call into question the right of residence solely because a citizen has not presented one or the other of the abovementioned documents, in particular where the person concerned is still able to provide unequivocal proof of his or her nationality by other means. (15)

(2)    The right of residence for more than three months

40.      A Union citizen also has a right of residence in the host Member State for a period of longer than three months if he or she satisfies the conditions laid down exhaustively in Article 7(1)(a), (b) or (c) of the Residence Directive, that is, in essence: (a) he or she is a worker or self-employed person in that Member State, or (b) he or she has sufficient resources for him or herself and his or her family members and comprehensive sickness insurance cover in the Member State, or (c) he or she is a student and has sufficient resources and comprehensive sickness insurance cover.

41.      Member States may require Union citizens to register with the relevant authorities, but the deadline for registration may not be less than three months from the date of arrival. (16) In addition, in accordance with the second subparagraph of Article 14(2) of the Residence Directive, where there is reasonable doubt as to whether a citizen or his or her family member satisfies the conditions set out in Article 7 of that directive, Member States may verify if those conditions are fulfilled. However, that verification cannot be carried out systematically. Lastly, the Member State may require the person concerned to report his or her presence within its territory within a reasonable and non-discriminatory period of time following his or her entry into the territory of that Member State. (17)

(3)    The derived right of residence of family members

42.      The family members of a Union citizen may reside within the territory of the Member States, provided that they satisfy the requirements laid down in Article 6(2) (in the case of residence for up to three months), or Article 7(1)(d) and (2) of the Residence Directive (in the case of residence for more than three months), namely by accompanying or joining that Union citizen having the right of residence. (18)

(b)    The grounds justifying the adoption of an expulsion decision on the basis of Article 15(1) of the Residence Directive

43.      The Residence Directive not only contains rules governing the conditions for obtaining the various types of rights of residence for which it provides, but also lays down a series of provisions intended to govern the situation arising where enjoyment of one of those rights is lost.

44.      In that regard, the Residence Directive provides for two situations in which Member States may adopt expulsion decisions: where such a decision is taken ‘on grounds of public policy, public security or public health’ (Article 27 of that directive) or where that decision is taken ‘on grounds other than public policy, public security or public health’ (Article 15(1) of the directive). (19)

45.      With regard to the second situation, under which the case at issue in the main proceedings falls, it should be stated first of all that Article 15, which is contained in Chapter III of the same directive, relates only to beneficiaries of temporary residence, and not those with a permanent right of residence. (20) In addition, unlike the decisions taken pursuant to Article 27 of the Residence Directive, (21) the situations in which host Member States may adopt decisions restricting free movement, in particular expulsion decisions, are not made expressly clear by the wording of Article 15 of that directive. Indeed, the latter provision does not state the nature of the ‘grounds other [than those provided for in Article 27 of the directive]’.

46.      Despite the silence of the legislation, the Court has interpreted Article 15 of the Residence Directive as laying down the rules applicable when a right of temporary residence under that directive comes to an end, in particular where a Union citizen or one of his or her family members who, in the past, had a right of temporary residence no longer satisfies the conditions for the right of residence concerned and can therefore, in principle, be expelled by the host Member State. (22)

47.      Accordingly, it may be inferred from the foregoing considerations that the reasons justifying the adoption of an expulsion decision on the basis of Article 15(1) of the Residence Directive can be established only on the basis of a combined reading of the other provisions of Chapter III of the same directive on the conditions for the right of temporary residence.

48.      In that regard, first, it is clear from the wording of Article 15(1) of the Residence Directive that the decisions restricting free movement apply both to Union citizens and their family members. (23) In the case of Union citizens, an expulsion decision could therefore be taken for failure to comply with the conditions laid down in Article 6(1) (residence for up to three months), or in Article 7(1)(a) to (c) (residence for more than three months), of that directive, as set out in points 38 and 40 of the present Opinion. In the case of family members, such a decision could also be taken for failure to comply with the conditions for the derived right of residence or the retention of that right, as presented in point 42 of the present Opinion.

49.      However, the directive contains two exceptions to the rule that an expulsion decision would be justified where the conditions of temporary residence are no longer met.

50.      First, the Residence Directive states, in recital 16, that, ‘as long as [they] do not become an unreasonable burden on the social assistance system of the host Member State’, Union citizens and their family members ‘should not be expelled’. (24) That requirement is consistent, first, with Article 15(2) of that directive, which states, in essence, that expiry of the identity card or passport on the basis of which the host Member State was entered does not constitute a ground for expulsion from the host Member State; second, with Article 14(3) of the same directive, which provides that an expulsion measure is not to be the automatic consequence of a Union citizen’s recourse to the social assistance system; and, third, with the provisions of Article 14(1) and of Article 24(2) of that directive on recourse to the social assistance system (see point 38 of the present Opinion).

51.      Accordingly, in the case of residence on the basis of Article 6 or Article 7 of the Residence Directive, an expulsion decision pursuant to Article 15(1) of that directive against a Union citizen or a member of his or her family could be justified solely where the condition of residence that is not met related to the criterion of the unreasonable burden on the social system of the host Member State, since the conditions relating to the possession of a valid identity card or passport are clearly not, on their own, sufficient to justify such an expulsion measure. (25)

52.      Second, Article 14(4) and the last sentence of recital 16 of the same directive provide, in essence, that an expulsion measure should not be adopted, in any circumstances, against workers, self-employed persons or jobseekers other than on grounds of public policy or public security. Indeed, in accordance with the case-law of the Court, Union citizens and their family members cannot be expelled as long as those citizens are able to provide evidence that they are continuing to seek employment and that they have a genuine chance of being engaged. (26)

53.      Therefore, in the case of residence on the basis of Article 7 of the Residence Directive, an expulsion decision cannot be taken against a Union citizen or a family member who does not satisfy the conditions of residence laid down in Article 7(1)(a) of that directive, which concerns workers and self-employed persons, regardless of whether that citizen or that family member may constitute a burden, even an unreasonable burden, on the social assistance system of the host Member State.

2.      The scope of the questions referred for a preliminary ruling

54.      In the light of the foregoing, I consider it useful to make the following clarifications regarding the scope of the questions referred for a preliminary ruling.

55.      In the first place, it seems to me appropriate to recall the referring court’s explanation that, despite FS’s criminal conduct, the State Secretary based the expulsion decision not on Article 27, but rather exclusively on Article 15 of the Residence Directive. The Court does not therefore have to rule on whether that criminal conduct could have constituted a threat to public policy or public security, within the meaning of that Article 27, and justified an expulsion decision on that basis. (27)

56.      In the second place, it should be noted that, although the expulsion decision at issue in the main proceedings was taken on account of non-compliance with the conditions laid down in Article 7 of the Residence Directive, the questions referred for a preliminary ruling, as worded by the referring court, refer, in more general terms, to all expulsion decisions that may be adopted on the basis of Article 15(1) of that directive. However, as I have previously observed, Article 15 of the directive applies where a right of temporary residence under that same directive comes to an end because the person concerned risks becoming an unreasonable burden on the social assistance system of the host Member State. Therefore, the answer sought by the referring court cannot, in my view, be confined to those situations in which a Union citizen is expelled solely on grounds relating to Article 7 of the Residence Directive even though, in reality, such grounds represent the bulk of the grounds for expulsion.

57.      In the third place, as is apparent from points 45 and 53 of the present Opinion, the starting point for my analysis is the assumption that it can be ruled out that the Union citizens concerned are citizens with a permanent right of residence or workers, self-employed persons or jobseekers covered by the exceptions set out in Article 14(4)(b) of the Residence Directive.

58.      In the fourth and final place, it should be made clear that, in absence of checks at the internal borders of the Union, the temporal effects of the expulsion decisions will be assessed only where an expelled citizen relies on a right of residence again before the authorities of a Member State. It cannot therefore be ruled out that that assessment may vary depending on the Member State handling that new application for a right of residence. Indeed, if, after leaving the host Member State, that citizen relies on a new right of residence in another Member State (even a non-member country) that State or country does not, in principle, have any reason to consider that the host Member State’s expulsion decision has in the meantime ceased to have legal effect. The analysis which follows therefore concerns only the circumstances of the present case, in which the citizen in question left the host Member State and is relying on a new right of residence in the same Member State, without in the meantime having been formally granted a right of residence in another Member State. (28)

B.      Consideration of the questions referred for a preliminary ruling

1.      The physical departure of a Union citizen as a sufficient factor for compliance in full with an expulsion decision taken on the basis of Article 15(1) of the Residence Directive

59.      By its first question, the referring court asks, in essence, whether the fact that the Union citizen physically leaves the territory of the host Member State is sufficient, on its own, for an expulsion decision taken on the basis of Article 15(1) of the Residence Directive to be regarded as having been fully complied with, such that that decision ceases to have current legal effects.

60.      The interested parties who lodged written observations and presented oral argument set out divergent positions. On the one hand, FS proposes that that question be answered in the affirmative, meaning that, in essence, an expulsion decision of that kind is fully complied with merely by virtue of the fact that, before the expiry of the period prescribed, and even if only for a limited time, the person concerned left the territory of the host Member State, and at the time at which that person did so. That person must therefore be able to rely on a new right of residence for a period of three months, pursuant to Article 6 of the Residence Directive. On the other hand, all the governments which lodged written observations and presented oral argument, as well as the Commission, support the State Secretary’s position that, in essence, the mere physical departure of the Union citizen cannot be enough to exhaust the legal effects of such a decision, arguing that such an interpretation would be contrary to the practical effect of that directive. (29)

61.      I agree with that second position for the following reasons.

62.      I would point out from the outset that, in order for Article 15 of the Residence Directive to be interpreted autonomously and uniformly, account must be taken not only of its wording, but also of the context in which it occurs and the objectives pursued. In addition, that provision cannot be interpreted restrictively and must not, in any event, be deprived of its practical effect. (30)

63.      In the first place, as regards the wording of Article 15 of the Residence Directive, I note that that article is worded such that it does not provide any foundation for an assessment of the temporal effects of the expulsion decisions taken on the basis of that article. Paragraph 1 of that provision states merely that ‘the procedures provided for by Articles 30 and 31 shall apply by analogy to all decisions restricting free movement … on grounds other than public policy, public security or public health’, paragraph 2 that ‘expiry of the identity card or passport … shall not constitute a ground for expulsion’, and paragraph 3 that ‘the host Member State may not impose a ban on entry in the context of an expulsion decision’.

64.      In addition, Articles 30 and 31 of the Residence Directive, to which Article 15(1) of that directive refers and which apply by analogy, (31) although they do contain provisions that could affect compliance with the expulsion decisions, they do not do so in relation to the temporal effects. (32) I note, in that connection, that Article 30(1) and (3) of that directive provides, inter alia, that Member States must notify the person concerned of expulsion decisions in writing, stating the time allowed for the person to leave their territory, and clarifies that, ‘save in duly substantiated cases of urgency, the time allowed to leave the territory shall not be less than one month from the date of notification’.

65.      Those provisions therefore have the effect, in essence, of extending the residence of an expelled person by a maximum period of one month from the notification of the expulsion decision. It could therefore be argued that that extension would serve no purpose if it were sufficient, in order to comply fully with an expulsion decision, for the person concerned to go physically to a neighbouring Member State. However,, when read in its more general context, Article 30(3) of the Residence Directive does not seek to govern the temporal effects of the expulsion decisions but rather, on the one hand, to ensure that the person concerned may make effective use of the redress procedures established by the Member States (33) and, on the other hand, to grant him or her a reasonable period of time to organise his or her departure.

66.      It follows from the foregoing that neither Article 15 nor Articles 30 and 31 of the Residence Directive can give a definitive answer as to how the legal effects of an expulsion decision are exhausted.

67.      In the second place, as regards the context of Article 15 of the Residence Directive, it must be recalled that that directive allows the free movement of Union citizens to be restricted ‘on grounds of public policy, public security or public health’ and on ‘grounds other than [those grounds]’ (see point 44 of the present Opinion). Although the directive does not specify the measures by which Member States may restrict free movement, it does, however, contain a provision that governs the duration of one of those measures, namely a decision ordering a person’s exclusion from the territory of a Member State.

68.      Article 32 of the Residence Directive allows an application to be made to lift such an order after a ‘reasonable period, depending on the circumstances, and in any event after three years from enforcement of the final exclusion order …, by putting forward arguments to establish that there has been a material change in the circumstances which justified the decision ordering their exclusion’.

69.      In my view, the fact that that directive governs the duration of exclusion orders and does not contain any provision equivalent to Article 32 determining the temporal effects of the other decisions restricting the free movement of Union citizens, in particular expulsion decisions taken on the basis of Article 15(1) of the directive, cannot demonstrate, applying an interpretation by analogy, that the effects of those expulsion decisions last for a reasonable period or, adopting an interpretation a contrario, that it was the intention of the EU legislature to ensure that the legal effects of an expulsion decision are extinguished merely by the Union citizen physically leaving the host Member State. (34)

70.      It follows that clarification of how the temporal effects of an expulsion decision are exhausted cannot be derived from a contextual interpretation of the Residence Directive.

71.      Since the literal and contextual interpretations are inconclusive, it is therefore only in the light of the teleological interpretation of the Residence Directive and its practical effect that answers can perhaps be found to this first question.

72.      Accordingly, with regard, in the third place, to the objective of Article 15 of the Residence Directive, I would point out from the outset that that provision has a dual purpose. First, it seeks to establish, for decisions adopted on the basis of that article, a system of procedural safeguards similar to that applicable to the decisions restricting free movement adopted on the basis of Article 27 of that directive. (35) Second, in so far as it permits the adoption of decisions restricting free movement where a Union citizen or one of his or her family members no longer satisfies some of the conditions of temporary residence, Article 15 of the directive pursues a less obvious but equally important objective. That article is in fact the only provision of the Residence Directive on which the Member States may rely in order to ensure, on the basis of EU law, that persons who no longer satisfy the conditions of temporary residence and who represent an unreasonable burden on their social assistance system can be removed from their territory. That provision is therefore intended to guarantee the practical effect of the provisions on the right of residence, whilst protecting a Member State’s public financial resources. (36)

73.      It is by reference to that second objective of Article 15 of the Residence Directive that I consider an assessment must be made as to whether the physical departure of a Union citizen is sufficient, on its own, for an expulsion decision to be fully complied with.

74.      In that regard, I take the view that an interpretation of Article 15 of the directive to the effect that an expulsion decision ceases, almost automatically, to have legal effects once the Union citizen physically leaves the territory of the host Member State would, in essence, deprive of any practical effect not only that article, but also, as result, all the provisions which lay down the conditions of the right of temporary residence.

75.      As I noted in points 43 to 53 of the present Opinion, the grounds justifying the adoption of an expulsion decision based on Article 15(1) of the Residence Directive can vary according to the type of residence enjoyed by the Union citizen or his or her family member prior to his or her expulsion. They do, however, have one thing in common – that person should not be the subject of expulsion measures as long as he or she does not become an unreasonable burden on the social assistance system of the host Member State.

76.      In addition, it seems clear to me that it is not by crossing the borders of the host Member State that a Union citizen or a member of his or her family can, from one day to the next, alter his or her status, such that he or she no longer represents such an unreasonable burden on the social assistance system of that Member State. If that were the case, decisions adopted on the basis of Article 15(1) of the Residence Directive would not, in reality, have any binding effect. Indeed, the concept of ‘expulsion’ would be deprived of any practical effect if, for example, a Union citizen could claim to have complied with the expulsion decision simply because he or she was briefly physically present in a neighbouring Member State.

77.      In the light of all the foregoing considerations, I propose that the first question referred for a preliminary ruling be answered to the effect that Article 15(1) of the Residence Directive is to be interpreted as meaning that an expulsion decision adopted on the basis of that provision cannot be fully complied with, such that it no longer has legal effects, merely because a Union citizen has physically left the territory of the host Member State.

78.      Accordingly, whilst there is no need to answer the second question referred for a preliminary ruling, the duration of the legal effects of such decisions does, however, remain to be determined.

2.      The temporal effects of an expulsion decision taken on the basis of Article 15(1) of the Residence Directive

79.      I rejected the proposal that the legal effects of an expulsion decision are extinguished because the person concerned has crossed the border of the host Member State having regard to the practical effect of Article 15. Out of concern for consistency, it is my view that those same requirements associated with preserving the practical effect of Article 15 of that directive must guide my analysis of the temporal effects of expulsion decisions.

(a)    The criterion of a ‘material change in the circumstances’ which justified the expulsion decision

80.      First of all, it should be noted that an expulsion measure pursuant to Article 15(1) of the Residence Directive is necessarily stripped of its rationale, and therefore lapses, if the person expelled manages to show that, following his or her expulsion, as early as even the day after the day on which he or she left the territory of the host Member State, a ‘material change in circumstances’ (37) now means that he or she is able to satisfy the conditions of residence which were not met and had justified that expulsion decision.

81.      In that situation, a Union citizen must be able to demonstrate to the authorities of that Member State that the expulsion decision has lapsed in order to rely on a new right of residence, in particular on the basis of Article 6 of the Residence Directive. It goes without saying that such a material change in circumstances occurs when that Union citizen can again be regarded as a worker, self-employed person or jobseeker in the former host Member State, since such a status precludes the loss of the right of residence under Article 15 of that directive and would therefore be incompatible with the coexistence of an expulsion decision. (38)

82.      Even though such situations are possible, it is, in reality, rare for such a material change in circumstances to eventuate shortly after the expulsion of the person concerned. On the contrary, such a change occurs most often only after a period of residence in another country. This therefore raises the question whether the only way for that person to be able to reside once more in the host Member State is to prove such a material change in circumstances.

83.      I take the view that that question must clearly be answered in the negative. Indeed, it would be contrary to the very spirit of the Residence Directive, which seeks to facilitate and strengthen the exercise of the right to reside freely within the territory of the Member States, to accept that an expulsion decision continues to have effects until there is a material change in the status of the person concerned. Such an approach could have the result of entrenching the temporal effects of that decision, in some circumstances on an unlimited basis, thus giving rise to a disproportionate impediment to the freedom of residence.

84.      There are two conceivable solutions to avoid such a situation: the first would be to determine the duration of the legal effects of an expulsion decision taking into account the exact duration of residence outside the host Member State following expulsion, a criterion which would apply systematically, whereas the second would be to determine the duration of the effects of the expulsion decision not exclusively on the basis of the duration of residence outside that Member State but on the basis of a series of other factors.

85.      For the reasons I will now outline, I propose that the first of the two solutions be rejected and the second adopted.

(b)    The criterion of a ‘certain period of residence’ outside the territory of the host Member State

86.      By its third question, the referring court seeks to ascertain whether a Union citizen who has been the subject of an expulsion decision pursuant to Article 15(1) of the Residence Directive is required to reside for a certain period of time outside the territory of the host Member State in order for that decision to be regarded as having been fully complied with. If so, it asks the Court to specify the duration of that period.

87.      Although all the governments which submitted observations to the Court and the Commission are in agreement that mere physical departure from the territory of the host Member State is not sufficient, on its own, to exhaust the effects of an expulsion decision, only the Netherlands Government takes the view that those effects are exhausted where a citizen has genuinely and actually left that Member State for a certain period of time, that is to say, for at least three months. As regards the application of that criterion, that government explained, in particular at the hearing, that, during those three months, a person expelled from the host Member State will be unable to rely on a new right of residence (save in the event of a ‘material change in circumstances’), but may continue to enter the territory of that Member State under Article 5 of the Residence Directive. However, that right of entry would be afforded only if it is shown that there is a specific and concrete reason justifying his or her presence on that territory (for example, a medical check-up, or a one-time purchase, and so forth). In the absence of such justification, the person in question would be assumed to be on that territory in continuation of his or her former right of residence and, therefore, in breach of the expulsion decision.

88.      The proposal by the Netherlands Government unquestionably has advantages from the perspective of the effective enforcement of expulsion decisions. Requiring in all cases the same minimum period of residence outside the host Member State on an EU-wide basis would ensure a degree of foreseeability and therefore legal certainty, because it would mean that both Union citizens and the Member States would be aware, in advance, for how long the expulsion decision may be regarded as having legal effects. Such foreseeability would a fortiori be assured since, pursuant to Article 30(3) of the Residence Directive, that period could begin on a specific date, that is to say, one month after the notification of the expulsion decision, without requiring proof of the person’s actual expulsion which, given the absence of internal borders, would be difficult to produce.

89.      However, stating that the legal effects of an expulsion decision must always last for a three-month period would, in reality, require the Union citizen to prove three months’ residence outside the host Member State before being able to rely on a new right of residence under Article 6 of the Residence Directive. Such an approach would, in my opinion, be at odds not only with the letter but also with the spirit of that directive.

90.      First, such an approach would establish a period of three months’ residence outside the host Member State as a condition sine qua non of the fundamental right of every Union citizen to move and reside freely within the territory of the Member States. However, given the fundamental nature of that right, (39) not only can it not be interpreted restrictively, (40) but, in accordance with Article 21(1) TFEU, it cannot be limited unless such a limitation is provided for in the FEU Treaty or in secondary law. (41)

91.      In that regard, it must be observed that there is no rule of secondary law, in particular amongst those laid down in the Residence Directive, that makes the exercise of the right of residence of Union citizens, in particular those who have been the subject of an expulsion decision, subject to proof of residence outside the host Member State for a certain period, whether for three months or for a shorter period of time. Endorsing the Netherlands Government’s proposal would therefore be a judicial creation, as the Court would be taking the place of the EU legislature to impose a specific rule concerning the duration of the legal effects of expulsion decisions. Such endorsement would undermine not only the letter of Article 21(1) TFEU but also the principles of institutional balance and the conferral of powers, as enshrined in Article 13(2) TEU. In addition, there is nothing to prevent the EU legislature from making provision in the Residence Directive for a precise duration of the temporal effects of the expulsion decisions taken on the basis of Article 15(1) of that directive, as it did for example in relation to the duration of decisions ordering a person’s exclusion. (42)

92.      Second, that proposal by the Netherlands Government would also run counter to the exercise of the right to move freely, as guaranteed by Article 5 of the Residence Directive, in that it would automatically impose an additional condition on the exercise of the right of entry – the ‘specific and concrete’ justification of the citizen’s visit to the host Member State. However, exercise of the right of entry, which is an expression of the freedom to move freely within the Union, is difficult to reconcile with such an obligation to provide a justification, in particular because, given its subjective and potentially arbitrary nature, it would risk deterring the persons concerned from actually exercising that right. It is true that, within the Schengen area, given the absence of checks at the internal borders, such a justification would be required only in exceptional circumstances, inter alia during police checks. However, such a practice of large-scale controls would undoubtedly be perceived by the individuals concerned as the indirect imposition of a ban on entry on the territory of the host Member State, since the reasons given could systematically be regarded as insufficient to justify their presence in the territory of the host Member State. Such a practice would run counter to the very spirit of Article 15(3) of the Residence Directive, which prohibits that Member State from imposing a ban on entry in the context of an expulsion decision.

93.      In the light of the foregoing, I propose that the Court find that the proposal from the Netherlands Government that the legal effects of an expulsion decision must systematically (43) last for a period of at least three months must be rejected.

94.      That finding cannot be called into question by the arguments which that government bases, adopting an interpretation a contrario, on the provisions concerning the ‘abuse’ of the Commission’s Guidance (44) and on the judgment of 12 March 2014, O. and B., (45) with a view to proving that a new right of residence under Article 6 of the Residence Directive may be acquired only once there has been ‘genuine and actual residence’ outside the host Member State.

95.      First, the conduct of the persons who, after having been expelled from the territory of a host Member State, want to return there in order to reside there cannot be termed ‘abusive’, within the meaning of the Court’s case-law or the Commission’s Guidance, to the extent that it is not artificial conduct adopted with the sole aim of obtaining the right to move and reside freely under EU law and which, despite formal observance of the conditions laid down by the EU rules, does not achieve the objective pursued by them. (46) On the contrary, in the present case, it is simply a case of determining whether that person can be granted a new right of residence by therefore demonstrating formal observance of the conditions laid down in those rules.

96.      Next, on the merits, the connecting factor between the judgment in O. and B. and the situation of a person who wants to reside in the host Member State once more is weak, since they are not comparable cases. In the judgment in O. and B., the Court was called upon to settle the question of whether EU law precluded a Member State from denying the right of residence to a third-country national, the family member of a Union citizen who is a national of that Member State, on the return of that citizen to the Member State, where, prior to his return, the citizen had resided in another Member State with the family member in question, solely in his capacity as a Union citizen. At issue were therefore the conditions for the grant of a derived right of residence to the third-country national, and it is in that particular context that the criterion of the ‘genuine residence’ of the EU citizen and his family member in the host Member State was found to afford a derived right of residence on the return of that Union citizen to the Member State of which he was a national. (47) However, in a situation such as that at issue in the dispute in the main proceedings, the person concerned is not seeking to rely on a derived right of residence which he or she acquired by settling in a Member State other than the host Member State in order to benefit from that right in the latter Member State on his or her return.

97.      Finally, unlike the judgment in O. and B., following an expulsion decision, there is no reason to require ‘long-term residence’ or ‘genuine residence’ in a Member State other than that which adopted that decision. The crucial point is that the person concerned ended his or her residence in the territory of the Member State that adopted the expulsion decision. The obligation to leave the territory further to an expulsion decision cannot give rise to an obligation to settle in another Member State and to acquire new ‘genuine residence’; such an obligation is contrary to the fundamental freedom of Union citizens to reside where they wish to within the territory of the Union.

(c)    Other relevant factors

98.      It is apparent from my analysis, first, that the legal effects of the expulsion decisions taken pursuant to Article 15 of the Residence Directive are not exhausted because the citizen concerned physically leaves the territory of the host Member State and, second, that those effects cannot last for as long as that citizen does not satisfy the conditions of residence once more or for a certain period of residence outside that Member State. It can therefore be inferred from the foregoing that the national authorities and courts of the host Member State will have to consider, on a case-by-case basis, the temporal effects of expulsion decisions.

99.      In that regard, whilst it is the practical effect of the provisions of the Residence Directive that must guide the definition of the relevant factors, there are, in my view, at least three kinds of factors that should form part of the body of evidence taken into account by the national authorities.

100. In the first place, I am of the view that, in order for the effects of an expulsion decision to be exhausted in respect of an individual and for that individual to be able to obtain the right of residence once more in the host Member State, he or she must have left the territory of that Member State, effectively putting an end to his or her residence in that country. In that situation, the authorities would have to determine whether an individual has in fact undertaken all the steps necessary to demonstrate that he or she has ceased to reside in the Member State. The following factors, which vary according to the type of residence at issue, may be relevant in determining the genuine and actual nature of the end of the period of residence in the host Member State. Thus, where the person concerned resided in the host Member State on the basis of Article 6 of the Residence Directive and was expelled because he or she no longer satisfied the conditions to retain that right under Article 14 of that directive, the proof that that person is required to provide to demonstrate his or her actual departure from that territory is, by its very nature and because the person in question has not had the time to become integrated in the host Member State, easier to furnish. Indeed, as the Court has already established in its case-law, a Union citizen who exercises his or her rights under Article 6(1) of the Residence Directive does not intend to settle in the host Member State in a way which would be such as to create or strengthen family life in that Member State. (48) By contrast, where the person concerned resided in the host Member State under Article 7 of that directive, providing evidence may be more demanding for the person concerned. For example, that citizen will have to be able to show that he or she has applied to be removed from the population register, terminated a lease agreement or an agreement for the supply of water or power, moved out of somewhere, deregistered with an employment agency or ended other relationships which his or her permanent presence presupposes. In that regard, I would observe that, although the period of absence from the territory of the host Member State cannot, in itself, be decisive or be taken in isolation, it could be one of the key factors that the national authorities will take into account. It goes without saying that a lengthy period of absence argues in favour of a genuine and actual end to the period of residence in the host Member State, and therefore, the legal effects of an expulsion decision being exhausted.

101. In the second place, as has already been established, the beneficiaries of the right of residence should not be the subject of expulsion measures as long as they do not become an unreasonable burden on the social assistance system of the host Member State. In order to determine whether the beneficiary constitutes such a unreasonable burden and to proceed, as the case may be, with his or her expulsion, in accordance with recital 16 of the Residence Directive, the Member State is required to examine ‘whether it is a case of temporary difficulties and [to] take into account the duration of residence, the personal circumstances and the amount of aid granted’. Taking those criteria as a basis, the national authorities should therefore be able to determine, as part of an individual examination, whether the expelled person, although not satisfying the conditions of Article 7 of the Residence Directive, no longer represents an unreasonable burden for the social assistance system, and may therefore rely on a right of residence under Article 6 of that directive. That assessment could consist in evaluating the personal circumstances and the conduct of the person concerned following his or her expulsion. In this regard, I would point out that the concept of ‘social assistance’ is broad and covers all the benefits that the Union citizen has not contributed towards and which are funded by the public purse. (49) For instance, where a person, such as the applicant in the case in the main proceedings, engages in repeated criminal conduct following his or her expulsion, (50) that conduct could be relevant because it could reflect the risk of him or her representing an unreasonable burden on account of the mobilisation, as a result of the conduct of the person in question, of a significant amount of police resources. It is, however, for the referring court to assess the unreasonableness of such recourse to social assistance.

102. In the third and final place, another factor that could be taken into account is the intention of the person in question to comply with the expulsion decision and to cut existing ties with the host Member State. That factor does, however, present a series of practical difficulties in its implementation, in particular because it appears difficult to judge, objectively speaking, the genuine intention of someone to end his or her residence. Such a necessity would require the national authorities to engage in ‘pure supposition’, which would be difficult to substantiate with objective evidence, especially where there is a short window of time between the date of departure and the checks conducted by the authorities or a short distance between the place where that person is residing and the host Member State.

V.      Conclusion

103. In the light of the foregoing, I propose that Court answer the questions referred by the Raad van State (Council of State, Netherlands) for a preliminary ruling as follows:

Article 15(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, as amended by Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011, is to be interpreted as meaning that an expulsion decision adopted by a host Member State on the basis of that provision cannot be regarded as having been fully complied with and no longer having legal effects solely because the person concerned by that decision has physically left the territory of that Member State. It is for the authorities of that Member State to assess the temporal effects of such decisions on the basis an individual examination of the person concerned, taking into account any material change in circumstances that allows that person to satisfy once more the conditions of residence which were not met and had justified the expulsion decision or, failing that, a series of factors such as, inter alia, the existence of a genuine and actual end to the period of residence in the host Member State, with the duration of residence outside the territory of the Member State being, in that regard, an indicative criterion but not decisive per se, and the risk of that person being an unreasonable burden on the social assistance system of that Member State.

1      Original language: French.

2      Directive 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 (OJ 2004 L 158, p. 77), as amended by Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 (OJ 2011 L 141, p. 1, and corrigenda OJ 2004 L 229, p. 35, and OJ 2005 L 197, p. 34).

3      The Court has been called upon to interpret some other aspects of Article 15 of the Residence Directive, in particular the scope of the procedural safeguards provided for in that article, in the judgments of 12 July 2018, Banger (C‑89/17, EU:C:2018:570, paragraphs 42 to 52), and of 10 September 2019, Chenchooliah (C‑94/18, EU:C:2019:693, paragraphs 71 to 88). Those procedural guarantees were also interpreted in the Opinion of Advocate General Szpunar in G.M.A. (Jobseeker) (C‑710/19, EU:C:2020:739, points 86 to 99).

4      See Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ 2006 L 105, p. 1).

5      That register forms an integral part of the Population Register and contains, inter alia, the data of persons who reside in the Netherlands for a period of less than four months.

6      FS was found to have worked for five months in the Netherlands, but he was no longer carrying out an economic activity, he had not demonstrated that he was unemployed through no fault of his own or a jobseeker and he did not have sufficient resources to be able to support himself.

7      The State Secretary has since rectified that assessment, acknowledging that FS had complied with that decision within the period prescribed (see point 27 of the present Opinion).

8      See judgment of 12 March 2014, O. and B. (C‑456/12, EU:C:2014:135, paragraphs 53 and 56).

9      See Article 5(1) of the convention implementing the Schengen Agreement of 14 June 1985 between the governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders, signed in Schengen on 19 June 1990 (OJ 2000 L 239, p. 19), and entered into force on 26 March 1995.

10      See Article 8 EC (OJ 1992 C 191, p. 1).

11      By adopting the Residence Directive, the EU legislature aspired to codify in a single act the earlier secondary law which dealt separately with workers, self-employed persons, students and other inactive persons, in order to simplify and strengthen the right of free movement and residence of Union citizens (see recitals 3 and 4). Moving beyond that fragmentary approach, that directive amended or repealed that secondary law, thus conferring a new dimension on the freedom of movement based on citizenship of the Union (judgment of 7 October 2010, Lassal (C‑162/09, EU:C:2010:592, paragraph 30 and the case-law cited)).

12      See recital 10 of the Residence Directive and the judgment of 11 November 2014, Dano (C‑333/13, EU:C:2014:2358, paragraph 70 and the case-law cited).

13      See Article 8(1) and (2) of the Residence Directive.

14      See judgment of 17 February 2005, Oulane (C‑215/03, EU:C:2005:95, paragraphs 21 and 35).

15      See judgment of 17 February 2005, Oulane (C‑215/03, EU:C:2005:95, paragraphs 24 and 25).

16      See Article 8(1) and (2) of the Residence Directive.

17      See Article 5(5) of the Residence Directive.

18      See judgment of 10 September 2019, Chenchooliah (C‑94/18, EU:C:2019:693, paragraphs 60 and 61 and the case-law cited). In addition, the Residence Directive provides for situations in which the derived right of residence is retained where the requirement of accompanying or joining the Union citizen is no longer possible, that is, in the event of the death or departure of that citizen (Article 12) or in the event of divorce, annulment of marriage or termination of registered partnership (Article 13). In those situations, family members who are nationals of a Member State must, in order to retain their right of residence, satisfy the conditions laid down in Article 7(1) of the Directive (Article 12(1) and Article 13(1)), whereas family members who are third-country nationals must satisfy the specific conditions laid down in that regard in Article 12(2) and Article 13(2) of the same directive (see judgment of 10 September 2019, Chenchooliah (C‑94/18, EU:C:2019:693, paragraph 66)).

19      It must be stated that neither Article 27(1) nor Article 15(1) of the Residence Directive uses the words ‘expulsion decisions’, but rather refers, respectively, in more general terms, to a ‘[restriction of] the freedom of movement and residence’ or to a ‘[decision] restricting free movement’. It is, however, apparent from the other provisions of that directive that the ‘expulsion decisions’ are clearly part of such measures (see, respectively, Article 28(1) and Article 15(2) and (3) of the directive).

20      Under Article 28(2) of the Residence Directive, a Member State may not take an expulsion decision against Union citizens or their family members who have the right of permanent residence on its territory, except on serious grounds of public policy or public security.

21      See Chapter VI of the Residence Directive, which is entitled ‘Restrictions on the right of entry and the right of residence on grounds of public policy, public security or public health’.

22      Judgment of 10 September 2019, Chenchooliah (C‑94/18, EU:C:2019:693, paragraph 74).

23      Under Article 3(1) of the Residence Directive, the family members of Union citizens, as defined in Article 2(2) of that directive, who accompany or join them also fall within the scope of the directive and are beneficiaries of the rights conferred by it (see judgment of 10 September 2019, Chenchooliah (C‑94/18, EU:C:2019:693, paragraph 54 and the case-law cited)).

24      Recital 16 of the Residence Directive further states that ‘the host Member State should examine whether it is a case of temporary difficulties and take into account the duration of residence, the personal circumstances and the amount of aid granted in order to consider whether the beneficiary has become an unreasonable burden on its social assistance system and to proceed to his expulsion’.

25      Application of the criterion of the unreasonable nature of the burden on the social assistance system could also concern the conditions laid down in Article 13(2) of the Residence Directive on the retention of the right of residence of family members who are not nationals of a Member State, in the event of divorce, annulment of marriage or termination of registered partnership, conditions which are not connected to the social assistance system.

26      See judgments of 20 February 1997, Commission v Belgium (C‑344/95, EU:C:1997:81, paragraphs 12 to 18), and of 17 December 2020, G.M.A. (Jobseeker) (C‑710/19, EU:C:2020:1037, paragraphs 22 to 27).

27      In so far as is relevant, it should be recalled that, in accordance with case-law of the Court, as codified in Article 27(2) of the Residence Directive, expulsion decisions on grounds of public policy or public security are justified solely if the conduct in question represented a ‘genuine, present and sufficiently serious threat affecting one of the fundamental interests of society’. In that regard, the Commission has stated that, in certain circumstances, persistent petty criminality could, taken as a whole, constitute a single act representing a sufficiently serious threat to public policy. See point 3.2 of the Communication from the Commission to the European Parliament and the Council on guidance for better transposition and application of [the Residence Directive] (COM(2009) 313 final, p. 12; ‘the Commission’s Guidance’). I would, however, note that, in accordance with the Court’s case-law, the existence of a number of convictions is not sufficient in itself to establish such a threat and that, therefore, that proposal from the Commission should be applied only exceptionally (see, by analogy, judgment of 4 October 2007, Polat, C‑349/06, EU:C:2007:581, paragraphs 28 to 39).

28      If a Member State other than the host Member State grants a new right of residence, that right of residence would effectively end erga omnes the expulsion decision, including in respect of the host Member State.

29      See point 27 of the present Opinion. In the Netherlands Government’s view, if a new three-month period began every time the border were crossed, this would create, de facto, an unlimited and automatic right of residence, for successive three-month periods, for the enjoyment of Union citizens who do not satisfy the requirements laid down in Article 7 of the Residence Directive.

30      Judgment of 11 April 2019, Tarola (C‑483/17, EU:C:2019:309, paragraphs 37 and 38 and the case-law cited).

31      The Court has explained that the expression ‘by analogy’ must be understood as meaning that the provisions of Articles 30 and 31 of the Residence Directive are applicable, in the context of Article 15 thereof, only if they can actually be applied, with the necessary adjustments, if appropriate, to decisions made on grounds other than public policy, public security or public health (judgment of 10 September 2019, Chenchooliah, C‑94/18, EU:C:2019:693, paragraph 81).

32      See also Article 31(4) of the Residence Directive.

33      See, to that effect, judgment of 4 June 2013, ZZ (C‑300/11, EU:C:2013:363, paragraph 48).

34      Moreover, I would note that a decision ordering a person’s exclusion from the territory of a Member State is a measure of potentially unlimited duration (‘an exclusion order for life’), which would disproportionately affect the beneficiaries of the Residence Directive (see recital 27). By contrast, an expulsion decision could be complied with instantly and, although the legal effects of such a decision may persist after the expulsion, in the form of a ban on acquiring a new right of residence, that ban cannot continue for an unlimited period of time, because it would then be a decision prohibiting residence for life.

35      Judgment of 10 September 2019, Chenchooliah (C‑94/18, EU:C:2019:693, paragraph 74).

36      See, to that effect, Opinion of Advocate General Wahl in Brey (C‑140/12, EU:C:2013:337, point 44).

37      Words inspired by Article 32(1) of the Residence Directive, which concerns expulsion orders, but which may apply, by analogy, to expulsion decisions. See, also, to that effect, judgment of 18 May 1982, Adoui and Cornuaille (115/81 and 116/81, EU:C:1982:183, paragraph 12).

38      Furthermore, family members who, prior to their expulsion, had a derived right of residence must also be able to benefit from that same opportunity if they satisfy once more the conditions laid down in Article 6(2) or Article 7(2) of the Residence Directive. The situation is, however, less clear in the case of family members who rely on the ‘retention’ of such a right, within the meaning of Articles 12 and 13 of that directive, since such retention presupposes that the right of residence at issue was not interrupted. However, such an interruption clearly takes place where the right of residence comes to an end and an expulsion decision is taken. Accordingly, where such a family member has been expelled, they cannot, in my view, rely on the provisions that apply to the retention of the right of residence. Only where that family member satisfies him or herself the conditions set out in Article 6 or 7 of the directive would a material change of circumstances justify a right of residence again. It is recalled, in this regard, that the provisions of the Residence Directive do not confer any autonomous right on third-country nationals, as any rights conferred on them are derived from the exercise of freedom of movement by a Union citizen (judgment of 12 March 2014, O. and B., C‑456/12, EU:C:2014:135, paragraph 36).

39      See point 36 of the present Opinion.

40      See, to that effect, judgments of 25 July 2008, Metock and Others (C‑127/08, EU:C:2008:449, paragraph 84), and of 11 April 2019, Tarola (C‑483/17, EU:C:2019:309, paragraph 38).

41      In the same vein, since that right is guaranteed by Article 45(1) of the Charter of Fundamental Rights, in accordance with Article 52 of that charter, any limitation on the exercise of that same right must ‘be provided for by law and respect the essence of [that right]’.

42      See points 68 and 69 of the present Opinion.

43      This does not mean that, on the basis of an individual assessment, the legal effects of an expulsion decision cannot last for a period longer than three months.

44      See footnote 27, Commission’s Guidance, point 4.3., ‘Other forms of abuse’, p. 18.

45      C‑456/12, EU:C:2014:135.

46      See, to that effect, judgments of 14 December 2000, Emsland-Stärke (C‑110/99, EU:C:2000:695, paragraph 52 et seq.), and of 12 March 2014, O. and B. (C‑456/12, EU:C:2014:135, paragraph 58).

47      See judgment of 12 March 2014, O. and B. (C‑456/12, EU:C:2014:135, paragraphs 56 and 57).

48      Judgment of 12 March 2014, O. and B. (C‑456/12, EU:C:2014:135, paragraph 52).

49      Opinion of Advocate General Wahl in Brey (C‑140/12, EU:C:2013:337, point 41); see, also, judgment of 19 September 2013, Brey (C‑140/12, EU:C:2013:565, paragraph 61).

50      The referring court states that, ‘after the detention was lifted, two further reports were filed by the police regarding the foreign national’.

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