Judgment of the Court (First Chamber) of 12 December 2019

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 6(1)(e) of Regulation (EU) 2016/399 of the European Parliament and the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ 2016 L 77, p. 1; ‘the Schengen Borders Code’).

2 The request has been made in proceedings between the Staatssecretaris van Justitie en Veiligheid (State Secretary for Justice and Security, Netherlands; the State Secretary’) and E.P. concerning the legality of a decision ordering E.P. to leave the territory of the European Union.

Legal context

The dispute in the main proceedings and the questions referred for a preliminary ruling

14 When E.P., a third-country national, was in the Netherlands on a short stay for which he was exempt from a visa requirement, he was suspected of having committed an infringement of the Netherlands criminal legislation relating to drugs.

15 By decision of 19 May 2016, the State Secretary ordered E.P. to leave the territory of the European Union, on the ground that he no longer fulfilled the condition set out in Article 6(1)(e) of the Schengen Borders Code inasmuch as he posed a threat to public policy.

16 E.P. brought an action against that decision before the rechtbank Den Haag, zittingsplaats Amsterdam (District Court, The Hague, sitting in Amsterdam, Netherlands).

17 By judgment of 13 September 2016, that court upheld the action and annulled the State Secretary’s decision.

18 The State Secretary appealed against that judgment.

19 In the light in particular of the nature of the decision issued to E.P., the complexity of the assessments that the State Secretary was called upon to make in order to adopt that decision and the fact that E.P. was on the territory of a Member State on the day when the decision was adopted, the referring court is uncertain whether, in order to find a threat to public policy, within the meaning of Article 6(1)(e) of the Schengen Borders Code, it had to be established that E.P.’s personal conduct represented a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.

20 It takes the view that, as matters stand, the Court’s case-law, resulting from the judgments of 19 December 2013, Koushkaki (C‑84/12, EU:C:2013:862 ), of 11 June 2015, Zh. and O . (C‑554/13, EU:C:2015:377 ), of 24 June 2015, T . (C‑373/13, EU:C:2015:413 ), of 15 February 2016, N . (C‑601/15 PPU, EU:C:2016:84 ), and of 4 April 2017, Fahimian (C‑544/15, EU:C:2017:255 ), does not provide an unequivocal answer to that question.

21 In those circumstances, the Raad van State (Council of State, Netherlands) decided to stay the proceedings and refer the following questions to the Court for a preliminary ruling:

• Must Article 6(1)(e) of [the Schengen Borders Code] be interpreted as meaning that, when establishing that a legal stay of no more than 90 days within a period of 180 days has been terminated because a foreign national is considered to be a threat to public policy, reasons must be given as to why the personal conduct of the foreign national concerned poses a genuine, present and sufficiently serious threat to one of the fundamental interests of society?

• If question 1 is to be answered in the negative, what are the requirements which, pursuant to Article 6(1)(e) of [the Schengen Borders Code], apply to the reasons as to why the foreign national is considered to be a threat to public policy?

  Must Article 6(1)(e) of [the Schengen Borders Code] be interpreted as precluding a national practice according to which a foreign national is considered to be a threat to public policy on the sole ground that it has been established that the foreign national concerned is suspected of having committed a criminal offence?’

Consideration of the questions referred

22 By its questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 6(1)(e) of the Schengen Borders Code must be interpreted as precluding a national practice under which the competent authorities may issue a return decision to a third-country national not subject to a visa requirement, who is present on the territory of the Member States for a short stay, on the basis of the fact that that national is considered to be a threat to public policy because he or she is suspected of having committed a criminal offence.

23 It is clear from Article 6(1)(e) of the Schengen Borders Code that one of the entry conditions for a short stay on the territory of the Member States is the requirement not to be considered to be a threat to public policy, internal security, public health or the international relations of any of the Member States.

24 Although that provision presents that requirement as a condition for entry into the territory of the Member States, it must be held that, following such entry, the stay on that territory is likewise legal only if that requirement continues to be complied with.

25 First, Article 20(1) of the Convention implementing the Schengen Agreement provides that third-country nationals not subject to a visa requirement may move freely within the territory of the Member States for the period defined in that provision, provided that they fulfil the entry conditions referred to in Article 5(1)(a), and (c) to (e) of that convention.

26 In that regard, it should be noted that Article 6(1) of the Schengen Borders Code replaced Article 5(1) of Regulation No 562/2006, which itself replaced Article 5(1) of the Convention implementing the Schengen Agreement. Thus, Article 20(1) of that convention must be understood as now referring to Article 6(1) of the Schengen Borders Code.

27 Second, it is apparent from Article 3(2) of Directive 2008/115 that a third-country national who is present on the territory of a Member State without fulfilling the conditions of entry as set out in Article 5 of Regulation No 562/2006, now replaced by Article 6 of the Schengen Borders Code, or other conditions for entry, stay or residence is, therefore, staying on that territory illegally (see, to that effect, judgment of 7 June 2016, Affum , C‑47/15, EU:C:2016:408, paragraph 59 ).

28 Accordingly, given that Article 6(1) of Directive 2008/115 provides that Member States are, in principle, to issue a return decision to any third-country national staying illegally on their territory, a Member State may issue such a decision to a third-country national not subject to a visa requirement who is present on the territory of the Member States for a short stay if he or she is a threat to public policy within the meaning of Article 6(1)(e) of the Schengen Borders Code.

29 In that context, with a view to determining the scope of the concept of ‘threat to public policy’ in Article 6(1)(e) of the Schengen Borders Code, it should be noted that it is apparent from the Court’s settled case-law that a Union citizen who has exercised his or her right to free movement and certain members of that citizen’s family can be regarded as posing a threat to public policy only if their individual conduct represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of the society of the Member State concerned (see, to that effect, judgments of 29 April 2004, Orfanopoulos and Oliveri , C‑482/01 and C‑493/01, EU:C:2004:262, paragraphs 66 and 67 , and of 10 July 2008, Jipa , C‑33/07, EU:C:2008:396, paragraphs 23 and 24 ).

30 The concept of ‘threat to public policy [ordre public]’ has subsequently been interpreted in the same way in the context of a number of directives governing the situation of third-country nationals who are not part of a Union citizen’s family (see judgments of 11 June 2015, Zh. and O ., C‑554/13, EU:C:2015:377, paragraph 60 ; of 24 June 2015, T ., C‑373/13, EU:C:2015:413, paragraph 79 ; and of 15 February 2016, N ., C‑601/15 PPU, EU:C:2016:84, paragraph 67 ).

31 Nonetheless, any reference by the EU legislature to the concept of ‘threat to public policy’ does not necessarily have to be understood as referring exclusively to individual conduct representing a genuine, present and sufficiently serious threat affecting one of the fundamental interests of the society of the Member State concerned.

32 Thus, the Court has held, in the context of Council Directive 2004/114/EC of 13 December 2004 on the conditions of admission of third-country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service (OJ 2004 L 375, p. 12), that the kindred concept of ‘threat to public security’ must be interpreted more broadly than it is in the case-law relating to persons enjoying the right of free movement and that it may cover inter alia potential threats to public security (see, to that effect, judgment of 4 April 2017, Fahimian , C‑544/15, EU:C:2017:255, paragraph 40 ).

33 It is thus necessary, in order to define the scope of the concept of ‘threat to public policy’, within the meaning of Article 6(1)(e) of the Schengen Borders Code, to take into account the wording of that provision, its context and the objectives pursued by the legislation of which it forms part (see, to that effect, judgments of 24 June 2015, T ., C‑373/13, EU:C:2015:413, paragraph 58 , and of 4 April 2017, Fahimian , C‑544/15, EU:C:2017:255, paragraph 30 ).

34 As regards, in the first place, the wording of Article 6(1)(e) of the Schengen Borders Code, it is to be noted that, unlike inter alia Article 27(2) of Directive 2004/38, it does not expressly require the personal conduct of the individual concerned to represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society in order for that individual to be capable of being regarded as a threat to public policy.

35 That assessment is supported, in the second place, by the context of Article 6(1)(e) of the Schengen Borders Code.

36 In that regard, it must be pointed out, first of all, that that provision is also closely connected with the Visa Code, since, under Article 21(1) of the Visa Code, it must be ascertained before a uniform visa is issued whether the entry condition which it lays down is fulfilled.

37 Therefore, the wide discretion accorded by the Court to the competent authorities of the Member States when they ascertain whether the conditions to which issue of a uniform visa is subject are complied with must logically, in the light of the complexity of such an examination (see, to that effect, judgment of 19 December 2013, Koushkaki , C‑84/12, EU:C:2013:862, paragraphs 56 to 60 ), be accorded to those authorities also when they determine whether a third-country national is a threat to public policy, within the meaning of Article 6(1)(e) of the Schengen Borders Code.

38 Next, whilst it is true that recital 27 and the third subparagraph of Article 8(2) of the Schengen Borders Code expressly refer to the situation in which a person represents ‘a genuine, present and sufficiently serious threat’ to public policy, those references relate only to the situation of persons enjoying the right of free movement under EU law, within the meaning of Article 2(5) of that code.

39 Accordingly, if the EU legislature had also intended Article 6(1)(e) of the Schengen Borders Code to apply only if such a situation obtained, it would logically have worded that provision in the same way as the third subparagraph of Article 8(2) of that code.

40 Finally, Article 6(1)(d) of the Schengen Borders Code provides that the requirement not to be a person for whom an alert has been issued in the SIS for the purposes of refusing entry is also an entry condition for a short stay on the territory of the Member States.

41 It is clear from Article 24(2) of Regulation No 1987/2006 that a third-country national who has been convicted of an offence carrying a penalty involving deprivation of liberty of at least 1 year or in respect of whom there are serious grounds for believing that he or she has committed a serious criminal offence may be a person for whom an alert is issued in the SIS for the purposes of refusing entry in that he or she is a threat to public policy or public security.

42 It follows that the concept of ‘threat to public policy or public security’, within the meaning of that provision, is therefore appreciably different from the concept referred to in paragraph 29 of the present judgment (see, by analogy, judgment of 31 January 2006, Commission v Spain , C‑503/03, EU:C:2006:74, paragraph 48 ).

43 In that context, to hold the concept of threat to public policy, within the meaning of Article 6(1)(e) of the Schengen Borders Code, to be narrower than the concept on which application of Article 6(1)(d) of that code depends would introduce incoherence into that code.

44 So far as concerns, in the third place, the objectives of the Schengen Borders Code, it is clear from recital 6 of the code that border control should help to prevent ‘any threat’ to public policy.

45 Therefore, it is evident, first, that the safeguarding of public policy is, as such, one of the objectives pursued by the Schengen Borders Code and, second, that the EU legislature intended to combat all threats to public policy.

46 In the light of all those considerations, Article 6(1)(e) of the Schengen Borders Code cannot be interpreted as precluding, as a matter of principle, a national practice under which a return decision is issued to a third-country national not subject to a visa requirement, who is present on the territory of the Member States for a short stay, if that national is suspected of having committed a criminal offence, without it having been established that his or her conduct represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of the society of the Member State concerned.

47 That said, such a national practice must comply with the principle of proportionality, which is a general principle of EU law, and must therefore, in particular, not go beyond what is necessary to safeguard public policy (see, to that effect, judgments of 2 May 2019, Lavorgna , C‑309/18, EU:C:2019:350, paragraph 24 ; of 17 April 2018, Egenberger , C‑414/16, EU:C:2018:257, paragraph 68 ; and of 9 July 2015, K and A , C‑153/14, EU:C:2015:453, paragraph 51 ).

48 It follows, first, that the infringement which the third-country national at issue is suspected of having committed must be sufficiently serious, in the light of its nature and of the punishment which may be imposed, to justify that national’s stay on the territory of the Member States being brought to an immediate end.

49 Second, in the absence of a conviction, the competent authorities can invoke a threat to public policy only if there is consistent, objective and specific evidence that provides grounds for suspecting that that third-country national has committed such an offence.

50 It is for the referring court to establish whether the national practice at issue in the main proceedings meets those requirements.

51 It follows from all the foregoing that the answer to the questions referred is that Article 6(1)(e) of the Schengen Borders Code must be interpreted as not precluding a national practice under which the competent authorities may issue a return decision to a third-country national not subject to a visa requirement, who is present on the territory of the Member States for a short stay, on the basis of the fact that that national is considered to be a threat to public policy because he or she is suspected of having committed a criminal offence, provided that that practice is applicable only if, first, the offence is sufficiently serious, in the light of its nature and of the punishment which may be imposed, to justify that national’s stay on the territory of the Member States being brought to an immediate end and, second, those authorities have consistent, objective and specific evidence to support their suspicions, matters which are for the referring court to establish.

Costs

52 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.