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Document 62021CC0528
Opinion of Advocate General Campos Sánchez-Bordona delivered on 24 November 2022.###
Opinion of Advocate General Campos Sánchez-Bordona delivered on 24 November 2022.
Opinion of Advocate General Campos Sánchez-Bordona delivered on 24 November 2022.
Court reports – general – 'Information on unpublished decisions' section
ECLI identifier: ECLI:EU:C:2022:933
Provisional text
OPINION OF ADVOCATE GENERAL
CAMPOS SÁNCHEZ-BORDONA
delivered on 24 November 2022 (1)
Case C‑528/21
M. D.
v
Országos Idegenrendészeti Főigazgatóság Budapesti és Pest Megyei Regionális Igazgatósága
(Request for a preliminary ruling from the Fővárosi Törvényszék (Budapest High Court, Hungary))
(Reference for a preliminary ruling – Area of freedom, security and justice – Borders, asylum and immigration – Third-country national staying illegally on the territory of a Member State – Directive 2008/115/EC – Ban on entry and stay – Third-country national who is the parent of a minor EU citizen – Threat to public policy and national security – Article 25 of the Convention implementing the Schengen Agreement – Obligation to consult Regulation (EC) No 1987/2006 – Alert for the purpose of refusing entry to the Schengen area)
1. This reference for a preliminary ruling raises the question, among others, as to whether EU law (including the Charter of Fundamental Rights of the European Union; ‘the Charter’) is compatible with the ban on entry into and stay (2) on the territory of a Member State which the authorities of that State have imposed on a third-country national without appearing to have assessed his personal circumstances, in particular, the fact that he is the father of a minor who is an EU citizen residing in that State.
2. That question in turn raises two issues relating to:
– The applicability of Directive 2008/115/EC (3) where the third-country national is located outside the territory of the Member State at the time when the authorities of that State issued the entry ban.
– The proportionality which, pursuant to Regulation (EC) No 1987/2006, (4) is a condition of the issue of ‘alerts’ for the purposes of refusing entry or stay under the second generation Schengen Information System (‘SIS II’).
I. Legal framework
A. European Union law
1. Convention implementing the Schengen Agreement (5)
3. In accordance with Article 25(2):
‘Where it emerges that an alert for the purposes of refusing entry has been issued for an alien who holds a valid residence permit issued by one of the Contracting Parties, the Contracting Party issuing the alert shall consult the Party which issued the residence permit in order to determine whether there are sufficient reasons for withdrawing the residence permit.
If the residence permit is not withdrawn, the Contracting Party issuing the alert shall withdraw the alert but may nevertheless put the alien in question on its national list of alerts.’
2. Regulation No 1987/2006
4. Article 21 (‘Proportionality’) reads:
‘Before issuing an alert, Member States shall determine whether the case is adequate, relevant and important enough to warrant entry of the alert in SIS II.’
5. Article 24 (‘Conditions for issuing alerts on refusal of entry or stay’) provides:
‘1. Data on third-country nationals in respect of whom an alert has been issued for the purposes of refusing entry or stay shall be entered on the basis of a national alert resulting from a decision taken by the competent administrative authorities or courts in accordance with the rules of procedure laid down by national law taken on the basis of an individual assessment. Appeals against these decisions shall lie in accordance with national legislation.
2. An alert shall be entered where the decision referred to in paragraph 1 is based on a threat to public policy or public security or to national security which the presence of the third-country national in question in the territory of a Member State may pose. …
…
3. An alert may also be entered when the decision referred to in paragraph 1 is based on the fact that the third-country national has been subject to a measure involving expulsion, refusal of entry or removal which has not been rescinded or suspended, that includes or is accompanied by a prohibition on entry or, where applicable, a prohibition on residence, based on a failure to comply with national regulations on the entry or residence of third-country nationals.
…’
3. Directive 2008/115
6. Recital 6 states:
‘Member States should ensure that the ending of illegal stay of third-country nationals is carried out through a fair and transparent procedure. According to general principles of EU law, decisions taken under this Directive should be adopted on a case-by-case basis and based on objective criteria, implying that consideration should go beyond the mere fact of an illegal stay. …’
7. According to recital 14:
‘The effects of national return measures should be given a European dimension by establishing an entry ban prohibiting entry into and stay on the territory of all the Member States. …’
8. According to Article 3(2) (‘Definitions’), ‘illegal stay’ means ‘the presence on the territory of a Member State, of a third-country national who does not fulfil, or no longer fulfils the conditions of entry as set out in Article 5 of the Schengen Borders Code [(6)] or other conditions for entry, stay or residence in that Member State’.
9. Article 3(6) defines ‘entry ban’ as ‘an administrative or judicial decision or act prohibiting entry into and stay on the territory of the Member States for a specified period, accompanying a return decision’.
10. In accordance with Article 5 (‘Non-refoulement, best interests of the child, family life and state of health’):
‘When implementing this Directive, Member States shall take due account of:
(a) the best interests of the child;
(b) family life;
…’
11. In accordance with Article 11(1) (‘Entry ban’):
‘Return decisions shall be accompanied by an entry ban:
(a) if no period for voluntary departure has been granted, or
(b) if the obligation to return has not been complied with.
In other cases return decisions may be accompanied by an entry ban.’
B. National law
12. The following provisions are relevant to this case:
– Paragraphs 33 and 42 of the a szabad mozgás és tartózkodás jogával rendelkező személyek beutazásáról és tartózkodásáról szóló 2007. évi I. törvény (Law I of 2007 on the entry and stay of persons having the right of free movement and residence; ‘Law I of 2007’) (Magyar Közlöny 2007/1).
– Paragraphs 43, 44 and 45 of the a harmadik országbeli állampolgárok beutazásáról és tartózkodásáról szóló 2007. évi II. törvény (Law II of 2007 on the entry and stay of third-country nationals; ‘Law II of 2007’) (Magyar Közlöny 2007/2).
13. Paragraph 17 of the 2018. évi CXXXIII. törvény az egyes migrációs tárgyú és kapcsolódó törvények módosításáról (Law CXXXIII of 2018 on the amendment of certain laws on migration and other related provisions of 21 December 2018) (Magyar Közlöny 2018/133), which has been in force since 1 January 2019, added Paragraph 94 to Law I of 2007 according to which:
‘…
4) The valid residence permit or the permanent residence permit held by a third-country national as a member of the family of a Hungarian citizen shall be withdrawn:
…
b) if the residence of the third-country national is a threat to public policy, public security or national security in Hungary.
…’
II. Facts, (7) disputes and questions referred for a preliminary ruling
14. M. D. is a Kosovo Serb national who arrived in Hungary in 2002. Since then, he has lived in that country with his partner and his minor son, both of whom are Hungarian nationals, and his mother. They are all financially dependent on him.
15. M. D. speaks good Hungarian. He owns a business, a property and several vehicles in Hungary. He also has a business in Slovakia and, on that basis, held a business residence permit there. (8)
16. From 31 May 2003, he held in Hungary a residence permit which was extended a number of times. Subsequently, because he had a minor child of Hungarian nationality, he was issued with a temporary residence card valid until 20 May 2021.
17. On 12 June 2018, he applied for a permanent residence permit in Hungary.
18. His application was refused at first instance in administrative proceedings by the Országos Idegenrendészeti Főigazgatóság Budapesti és Pest Megyei Regionális Igazgatósága (Budapest and Pest Regional Directorate of the National Directorate of the Immigration Police, Hungary). (9)
19. That decision was based on a report by the Alkotmányvédelmi Hivatal (Constitutional Protection Office, Hungary) stating that M. D. posed a real, immediate and serious threat and must therefore leave the country. (10)
20. On 27 August 2018, the Immigration Police found that M.D.’s right of residence had expired, a fact which was confirmed by the same authority at second instance in the administrative proceedings on 26 November 2018.
21. On 28 May 2019, the Fővárosi Törvényszék (Budapest High Court, Hungary) annulled the decision of 26 November 2018 (11) and ordered the immigration authorities to conduct a new procedure taking into account all of the circumstances of the case, first and foremost the fact that M. D. and his partner lived in their home in Hungary with their minor son of Hungarian nationality.
22. On 29 August 2019, at the end of the new procedure, the Immigration Police refused to grant M.D. a residence card. The Immigration Police stressed that, in the light of the legislative changes which had been introduced since 1 January 2019, the procedure had been conducted on the basis of Paragraph 94(4)(b) of Law I of 2007. (12) They further noted that they could not deviate from the opinions of the Constitutional Protection Office, in its capacity as a specialist authority, and had no discretion in this regard.
23. M. D. brought an action against the decision of the Immigration Police before the Fővárosi Törvényszék (Budapest High Court). That court dismissed the action on the ground that the immigration authorities are obliged to seek the opinion of the specialist authority, by which they are bound.
24. The Kúria (Supreme Court, Hungary) confirmed the judgment of the Fővárosi Törvényszék (Budapest High Court). In the light of the classified documents that had formed the basis of the specialist authority’s report, it accepted that M. D.’s stay in Hungary would constitute a real and immediate threat to national security. For that reason, the assessment of his personal situation could not lead to a different response.
25. M. D. left Hungarian territory on 24 September 2020. (13)
26. On 14 October 2020, the Immigration Police banned him from entering Hungary for a period of three years and ordered that an alert relating to that ban be entered in SIS II.
27. That ban was based on the fact that:
– M. D.’s stay in Hungary posed a threat to the national security of that country. (14)
– The Constitutional Protection Office, by a proposal of 30 September 2020, had recommended that M. D. be removed and that a 10-year entry and residence ban be issued.
28. M. D. brought an action against the entry ban before the Fővárosi Törvényszék (Budapest High Court). He claimed that the Immigration Police had failed to fulfil its obligations to clarify, assess and provide reasons for the facts and the provisions cited in its decision, and that it had relied exclusively on the proposal of another authority. He cited in his favour not only national legislation but also Article 11 of Directive 2008/115.
29. The Immigration Police contended that the action should be dismissed. It argued that its decision had been based on Paragraph 43 of Law II of 2007, a mandatory provision which requires that an independent entry ban be imposed on any third-country national residing outside Hungary whose entry and residence run counter to national security, and which further provides that proposals made by national security bodies are to be binding. Furthermore, given that M. D.’s residence permit (issued on the basis of his family relationship) had already been revoked, it would had been under no obligation to take into account his family circumstances.
30. It is against that background that the Fővárosi Törvényszék (Budapest High Court) has referred four questions to the Court of Justice for a preliminary ruling, the first two of which are reproduced below:
‘(1) Are Articles 5 and 11 of Directive [2008/115] and Article 20 TFEU, in conjunction with Articles 7, 20, 24 and 47 of the Charter, to be interpreted as precluding a practice of a Member State which extends the application of a legislative amendment to fresh proceedings initiated by virtue of a court order made in previous proceedings, where, as a result of that legislative amendment, a third-country national who is a family member of an EU citizen is made subject to much less favourable procedural rules, such that that person loses the status of a person who may not be returned even on grounds of public policy, public safety or national security, which that person had attained on account of the duration of his residence up to that point; that person’s application for a permanent residence card is then refused on the basis of that factual situation and on grounds of national security; and that person has the residence card issued in his favour withdrawn and is subsequently made subject to an entry and residence ban without consideration of his personal and family circumstances in any of the proceedings (particularly, in this context, the fact that the person concerned also has a dependent minor child who is a Hungarian citizen), as a result of which either the family unit is broken up or the EU citizens who are family members of the third-country national, including his minor child, are required to leave the territory of the Member State?
(2) Are Articles 5 and 11 of Directive 2008/115 and Article 20 TFEU, in conjunction with Articles 7 and 24 of the Charter, to be interpreted as precluding a practice of a Member State pursuant to which the personal and family circumstances of a third-country national are not examined before the imposition on that third-country national of an entry and residence ban, on the grounds that residence by that person, who is a family member of an EU citizen, presents a real, immediate and serious threat to the country’s national security?’
III. Procedure before the Court
31. The request for a preliminary ruling was registered at the Court on 26 August 2021. The Court decided to treat it as a priority.
32. Written observations have been lodged by the Czech and Hungarian Governments and the European Commission.
33. On 25 March 2022, the Court sought a number of clarifications from the referring court, which forwarded that request to the parties in the original proceedings. Both M. D. and the Immigration Police replied to the questions sent.
34. A hearing held on 21 September 2022 was attended by the Hungarian Government and the Commission.
IV. Analysis
35. At the Court’s direction, this Opinion will look at the first two questions referred for a preliminary ruling.
36. I shall deal with these questions together, given their common features. In essence, the referring court wishes to ascertain whether Article 20 TFEU and Articles 5 and 11 of Directive 2008/115, read in conjunction with Articles 7, 20, 24 and 47 of the Charter, must be interpreted as meaning that they preclude a Member State from withdrawing the right of residence from a third-country national who is a relative of an EU citizen who has not exercised his freedom of movement, and banning him from entering its territory, on the ground that his conduct constitutes a real, immediate and serious threat to national security, without examining his personal and family situation, even though he has a minor son who is a national of that Member State.
37. The referring court states that a legislative amendment unfavourable to third-country nationals was applied at the end of a procedure initiated while the previous legislation was still in force. To my mind, this time factor does not affect the reply to the question raised from the point of view of EU law. Furthermore, according to the aforementioned account of the facts, the legislative amendment was applied in order to refuse to issue the residence card, a decision which is final by virtue of the judgments mentioned above.
A. Admissibility
38. It is precisely on the basis of that latter fact that the Hungarian Government claims that there is no relationship between the questions referred and the subject matter of the main proceedings. The questions, it submits, relate to provisions applied in the course of earlier proceedings which have been finally concluded and which are separate from the proceedings pending now. The reference for a preliminary ruling is therefore hypothetical. (15)
39. It goes on to say that, since the original action is directed against an independent decision on entry to and stay in Hungary to which neither Directive 2008/115 nor the Charter applies, an interpretation of those provisions is not necessary in order to dispose of that action.
40. There is some merit to the objection raised by the Hungarian Government, inasmuch as, as I have noted, the national decisions which found that M. D. was not entitled to obtain or retain in Hungary a residence card he had previously held there – and which the national courts concerned did not make the subject of a reference for a preliminary ruling before confirming – were final. (16)
41. That does not mean, however, that the reference for a preliminary ruling is irrelevant to the dispute. If the latter is confined to the validity of the ban on entry to Hungary, (17) the doubts raised are legitimate even if, as I shall propose, Directive 2008/115 and (to the extent that that directive is dictated by it) the Charter are not applicable to it.
B. Applicability of Directive 2008/115
42. It follows from the wording of the questions referred that, in the view of the referring court, the applicability of Directive 2008/115 is not in doubt. The Commission and the Hungarian Government, on the other hand, for partly the same reasons, reject the proposition that that instrument governs a situation such as that at issue:
– According to the Commission, Directive 2008/115 applies to third-country nationals staying illegally in a Member State. This cannot be said of someone who is not located in that Member State at the time when the entry ban is issued. (18)
– The Hungarian Government argues along the same lines. (19) It adds that the reasons for the ban issued are not linked to migration and refers to the Return Handbook, (20) point 11 of which it cites in support of its argument. (21) The entry ban is independent (22) and, as such, governed by national law.
43. In my view, the requirements of Directive 2008/115 must be applied to a third-country national whose presence in a Member State is lawful but becomes unlawful because the residence permit previously granted to him or her is withdrawn.
44. However, there is no express indication in Directive 2008/115 as to how the illegal alien’s departure from the territory of that Member State affects the application of that provision.
45. My view is that Directive 2008/115 does not cover that eventuality, since it applies only to third-country nationals who are illegally located on the territory of a Member State, (23) according to the definition contained in the directive itself.
46. The requirement that the third-country national be present on the territory of a Member State derives implicitly from Article 2(1) of the directive, the scope of which covers ‘third-country nationals staying illegally on the territory of a Member State’.
47. That third-country nationals should be ‘staying illegally’ (24) on that territory is therefore essential in order for Directive 2008/115 to become applicable. For the purposes of classification as ‘illegal’, the reason for or the duration of their presence is irrelevant. (25)
48. Directive 2008/115 imposes on Member States an obligation to take action in respect of third-country nationals who are, as I have said, illegally located on their territory. (26) Once they have detected an unauthorised presence on their territory, they must bring it to an end as soon as possible. (27) As a rule, pursuant to Article 6(1), they will issue a return decision, (28) ‘without prejudice to the exceptions referred to in paragraphs 2 to 5’. (29)
49. It may be confusing that there are in fact two types of third-country national entry ban: (a) those that accompany return decisions adopted in accordance with Directive 2008/115; and b) those issued for national security or other similar reasons outside the framework of that directive.
50. The distinction between those two categories of entry ban makes it advisable to provide a thumbnail sketch of entry bans subject to Directive 2008/115 and those which are not bound by that directive.
1. Entry bans subject to Directive 2008/115
51. Directive 2008/115 forms part of the collection of instruments aimed at implementing the European Union’s policy to combat the illegal immigration of third-country citizens.
52. Its purpose is to set out common standards in respect of return, expulsion, the use of coercive measures, detention and entry bans with a view to ensuring that the ending of illegal stay of third-country nationals is carried out through fair and transparent procedures. (30)
53. Directive 2008/115 provides for several closely related procedures: the central one, concerning return decisions, and others for taking steps which are linked to such decisions and can or must follow them.
54. The purpose of such steps is to prepare and secure the return of the person concerned by: (a) setting the deadline for voluntary compliance with the obligation to return; (b) ensuring that the conditions for enforced compliance are in place; and (c) enforcing the return order in the Schengen area through entry bans reflected in SIS II. (31)
55. Within that system, the entry ban is a means of increasing the effectiveness of the European Union’s returns policy: for a certain period after his or her removal, an illegally staying third-country national may not lawfully return to the territory of the Member States. (32) The ban gives the return order a European dimension. (33)
56. Under Directive 2008/115, an entry ban:
– Is contingent upon a return decision, in the sense that, if no such decision has been adopted, an entry ban cannot be issued. (34) That requirement is laid down in Article 3(6) and Article 11(1) of that directive.
– Must accompany a return decision if no period for voluntary departure has been granted or the obligation to return has not been complied with. (35)
– May produce its own legal effects only after voluntary compliance with, or enforcement of, a return decision. (36)
– Cannot be maintained in force after the return decision has been withdrawn. (37)
2. Entry bans not subject to Directive 2008/115
57. Member States retain the power to refuse the entry of third-country nationals into their territory in situations other than those in which a return decision is issued under Directive 2008/115, because of their illegal status.
58. As I have already said, those situations (which are characterised by conduct constituting threats to public policy, public security or national security, or adversely affecting international relations, which is perpetrated by persons not located on their territory) are not covered by Directive 2008/115.
59. Such entry bans are independent of any return decision governed by Directive 2008/115. They are subject to the provisions of national law (and, in some cases, provisions of international law or certain EU decisions), (38) but not, as I have said, to Directive 2008/115. (39)
60. Being based on the threat believed to be posed by the presence of a third-country national on the territory of a Member State, a ban of this type also forms the basis for a decision to place the individual concerned on the lists of persons to be denied entry which are contained in SIS II. The entry of an alert in SIS II is compulsory in such circumstances. (40)
3. Limited geographical scope of the entry ban
61. Whatever the reason for a ban on entry and stay adopted by a Member State, the geographical scope of that ban is limited if the person against whom it is directed holds a document entitling him or her to stay legally in another Member State.
62. Given that the ‘pan-European’ effect of an entry ban is, technically and practically, linked to the entry of an alert based on that ban in SIS II, the corresponding alert in SIS II must be removed if the ban is not capable of producing that effect.
63. Thus, in the event that the third-country national holds a residence permit in a State party to SIS II, Article 25(2) of the CISA provides for a system of consultations between the State issuing the permit and the State entering the alert in SIS II, (41) aimed at determining whether there are sufficient grounds for withdrawing that permit. If the permit is kept in place, the State which issued the alert must then withdraw it.
64. In the latter case, and as the same text provides, the State which issued the alert may put the alien on its national list of alerts. (42)
4. Leaving the territory before the return decision and entry ban for national security reasons
65. If an individual staying illegally in a Member State leaves that State before the authorities there take a decision in relation to him or her, the return order provided for in Directive 2008/115 becomes superfluous: the fact that the third-country national is not present on the territory of that State makes it unnecessary to issue one. (43)
66. This follows, in my opinion, from the provisions of Directive 2008/115, which (a) define illegal stay as the ‘presence’ on the territory of a Member State of a third-country national who does not fulfil (or no longer fulfils) the conditions of entry, residence or stay, and (b) lay down the procedures applicable to an individual staying on the territory of a Member State.
67. The foregoing is consistent, moreover, with a system which imposes on all Member States the obligation to bring to an end as soon as possible the illegal stays which they identify on their territory.
68. In my view, the solution is the same whether the departure of the person concerned takes place before the institution of proceedings to decide whether that person’s stay is illegal or during such proceedings if these have not yet culminated in a decision. In the latter event, the proceedings are divested of their purpose: there is (in the Member State conducting those proceedings) no illegal stay which must be brought to an end by issuing a return order, or taking some other action if the conditions for doing so are met.
69. The procedural consequences of that solution at national level (that the case should be closed, not proceed to judgment or be disposed of in some other way) are in principle to be determined by the Member State’s own law. (44)
70. The situation described above must not be confused with that of a third-country national whose whereabouts are not known but who is believed to be still present on the territory of the Member State concerned. In those circumstances, a return decision may, in my view, be adopted in absentia. (45)
71. In the absence of a return decision for the reason explained, it may automatically be concluded that an entry ban as provided for in Article 11 of Directive 2008/115 cannot be issued. (46)
72. In those circumstances, as I have already explained, a Member State which considers it necessary for reasons of national security to prevent the entry of a third-country national who is no longer on its territory may do so in accordance with its national law.
73. To my mind, this line of argument prevails over the view that Directive 2008/115 will continue to apply to a third-country national who, having lost the document entitling him or her to be present on the territory of a Member State, brings his or her illegal stay to an end (that is to say, that he or she returns) before any decision is taken in this regard.
74. In the opinion of those who advocate that view, such an entry ban is governed by Directive 2008/115, in so far as it represents a degree of continuity with the procedures under that directive.
75. It is an intriguing proposition, which would place the individual concerned under a scheme of harmonised rules whereby an entry ban, even if based on a reason other than illegal migration, would still have to be issued in accordance with the principles and (procedural and substantive) requirements of Directive 2008/115 itself.
76. Such an interpretation, however, is not without its drawbacks. The first is that it comes into conflict with Article 2 and Article 11(1) of Directive 2008/115, to which I referred earlier. What that directive sets out to achieve is to put an end to illegal stays by third-country nationals, not to dispose of cases in which intervention by the authority of the Member State concerned is no longer necessary (ceases to be necessary) precisely because the illegal stay on the territory of that State has disappeared.
77. Second, I would recall that the immediate purpose of Directive 2008/115 is not to protect the public policy, public security and national security of Member States, even though those interests are not alien to that directive. (47) To accept that that directive applies to entry bans based on those grounds, but not linked to a return order, would be to regard the purpose set out in Article 1 of that directive as being synonymous with the direct safeguarding of those interests.
78. Third, Directive 2008/115 does not seek to harmonise in their entirety domestic rules on the stay of foreign nationals, but only to provide for the adoption of return decisions (or, more correctly, decisions bringing illegal stays to an end) and the implementation of those decisions. (48) The interpretation I am analysing now would mean, so far as Member States are concerned, that any entry bans issued by them on grounds other than migration and not linked to return orders would not be capable of:
– possessing characteristics (duration, scope ratione personae) different from those defined by Directive 2008/115 itself, or
– being deployed in situations other than those laid down in that directive,
whenever such prohibitions are directed against a third-country national who was but is no longer staying illegally on their territory.
79. The first of those obstacles could to some extent be overcome, inasmuch as, as I have said, the current wording of Directive 2008/115 contains references to public policy, public security and national security (Article 11(2), inter alia) as interests which are capable of affecting the duration of the ban and its scope ratione personae. (49)
80. In Directive 2008/115, however, those concepts are independent, as are all concepts of EU law, the definition of which the legislature does not leave to the Member States (even if the directive itself does not define them). It is legitimate to question whether they correspond to their national counterparts, or at least whether they are the same in terms of the way in which they must apply, given their different contexts: European Union, on the one hand; (50) and national, on the other.
81. As regards the second obstacle, I would reiterate that Directive 2008/115 provides only for entry bans that accompany a return order. It does not provide for them in the case where the third-country national, staying illegally on the territory of the Member State concerned, holds an authorisation to stay in another Member State, (51) or where, under an agreement, a Member State other than where the third-country national is apprehended takes him or her back. (52)
82. However, it may still be in the interests of a Member State (or even a matter of obligation for it) to bar from its territory a foreign national who leaves it ‘in compliance’ with the requirement referred to in Article 6(2) of Directive 2008/115, or irrespective of whatever decision has been taken in relation to that individual in any other Member State once it has taken him or her back. It is for each Member State, subject to compliance with the conditions recalled by the Court, to assume responsibility for maintaining public policy on its own territory and for safeguarding internal and external security. (53)
5. The case at issue
83. According to the account given by the referring court, M. D. left Hungarian territory before a return order was imposed on him. If that is correct, I can confirm, on the basis of the submissions set out thus far, that Directive 2008/115 was not applicable to the later ban on entering Hungary that was issued against him.
84. In the event that M. D. held a residence permit in Slovakia at the time when he was banned from entering Hungary, the competent authorities of both Member States should have engaged in the consultations required by Article 25(2) of the CISA, at the latest once an alert based on that ban had been entered into SIS II. (54)
85. In order to avoid a contradictory situation, if, following those consultations, Slovakia had not formally withdrawn M. D’s residence permit, Hungary would have had to remove the entry of an alert on refusal of entry from SIS II. It could, however, have retained the entry on its national list of alerts on refusal of entry.
C. Entry ban and prior assessment of personal and family circumstances
86. May a Member State prohibit a third-country national from entering its territory for national security reasons without considering his or her personal and family circumstances?
87. In my opinion, the answer to that question has to be in the negative, irrespective of whether the ban is governed by Directive 2008/115 or whether, outside the framework of that directive, the person concerned is the parent of a minor who is a national of the Member State issuing the ban.
88. Under a prerogative traditionally attendant upon their sovereignty, Member States are able to limit the freedom of movement of non-nationals by denying them entry into their territory or by removing them from it.
89. Neither international treaties nor EU law call that principle into question. They may, however, temper or modulate it in certain situations by imposing an obligation to assess the individual circumstances of the person concerned or other relevant factors.
90. I shall expand upon the above assertion, in relation to EU law, from two points of view.
1. If Directive 2008/115 is applicable
91. If the ban on entry into the territory of a Member State were governed by Directive 2008/115, the answer would follow immediately from Article 5 thereof: when implementing that directive, the Member State concerned has an obligation to take account of the best interests of the child and family life.
92. The foregoing is echoed in several recitals of Directive 2008/115: (55)
– Recital 24 states generally that the directive respects the fundamental rights and observes the principles recognised in particular by the Charter.
– Recital 6 recalls the duty of Member States to adopt decisions on a case-by-case basis.
– Recital 22 refers to the ‘best interests of the child’ and respect for family life as primary considerations of the Member States when implementing the directive.
93. Those requirements (56) do not cease to exist in the case where a return order must be accompanied by an entry ban, pursuant to Article 11(1)(a) and (b) of Directive 2008/115. What is more, the personal circumstances of the person concerned will continue to inform the duration of the ban. (57)
94. In those cases, the relevant analysis is absorbed by another: that relating to the return order itself, as well as, in the situation under Article 11(1)(a) of Directive 2008/115, that carried out as the basis for not granting a voluntary departure period under Article 7(4).
95. The Court has held that, in the light of the objective which it pursues, Article 5 of Directive 2008/115 cannot be interpreted restrictively. (58) With specific regard to the best interests of the child, I would recall that such interests must be respected where that directive applies to the child, and also where it applies to his or her parent. (59)
2. If Directive 2008/115 is not applicable
96. Member States must ensure that, even in those fields in respect of which they alone have competence, they exercise that competence without infringing EU law. (60)
97. In particular, where the residence of third-country nationals in their territories is concerned, the measures which those Member States adopt must not deprive EU citizens of the effective enjoyment of the rights which that citizenship confers on them. (61)
98. A refusal to grant a right of residence to a third-country national is liable to undermine the effectiveness of EU citizenship. This is the case where there exists between that third-country national and a member of his or her family who is an EU citizen a relationship of dependency such that refusing to grant the third-country national residence in a Member State would compel the family member to accompany him or her and to leave the territory of the European Union as a whole. (62)
99. The Court has made it clear that the assessment of the existence of a relationship of dependency of this kind in the case of a citizen who is a minor (63) requires consideration to be given to who has custody of the child and whether the child is legally, financially or emotionally dependent on the third-country national parent. (64)
100. Once the relationship of dependency has been established, the third-country national may exceptionally seek to be granted a derived right of residence (that is to say, derived from the right enjoyed by the EU citizen) under Article 20 TFEU.
101. It must be recalled, however, that a derived right of residence is not absolute. Member States are entitled not to recognise it in certain circumstances, including, in particular, the maintenance of public policy and the safeguarding of public security. (65)
102. National security reasons are a particularly strong justification for restricting recognition of the derived right of residence under Article 20 TFEU. In order for such a restriction to be so warranted, those reasons must relate to factors which genuinely affect national security as interpreted by the Court. (66)
103. The strength of that justification is not without limits, however, as the Court itself has repeatedly noted. (67) In that context, it has held: (68)
– The concepts of ‘public policy’ and ‘public security’ as a justification for derogating from the right of residence of EU citizens or members of their families must be interpreted strictly. (69)
– The threat which the third-country national poses to public policy must be genuine, present and sufficiently serious; in order to be able to maintain that such a threat is present, it is not sufficient for the third-country national to have a criminal record in the Member State in question. (70)
– It falls to the Member State to take into account, inter alia, of ‘the personal conduct of the individual concerned, the length and legality of his residence on the territory of the Member State concerned, the nature and gravity of the offence committed, the extent to which the person concerned is currently a danger to society, the age of any children at issue and their state of health, as well as their economic and family situation.’ (71)
104. Those circumstances having been examined, if, on the balance of considerations, the risks to public security or, particularly, to national security (72) still take precedence, as confirmed by the authorities of the Member State and, possibly by the courts reviewing their decisions, then the way is open for the imposition of an entry ban on the third-country national.
3. The case at issue
105. Although it is for the referring court to confirm this, I would venture to say, in the light of the observations submitted by the parties and the circumstances as a whole, that there is between M. D. and his minor child, a Hungarian national, a relationship of dependency such as to entitle M. D. to seek a derived right of residence under Article 20 TFEU.
106. I disagree, in particular, with the Hungarian Government when it submits, in support of its contention that no such relationship of dependency exists, that the minor’s mother also lives in Hungary and has an obligation to provide for his maintenance as part of her parental responsibility. (73)
107. M. D. held a residence permit in Slovakia which appears to have been withdrawn. It is therefore legitimate to think that the consequence of refusing to grant him residence in Hungary would be to compel his minor son to leave the territory of the European Union as a whole.
108. Nonetheless, even if M. D. did qualify for a derived right of residence under Article 20 TFEU, he could be prohibited from entering and staying in Hungary for national security reasons, as I have already said, if the outcome of a balanced consideration of the circumstances to which I have just referred, compulsory under EU law, indicates conclusively that those reasons must take priority.
109. I do not have all of the relevant data necessary for such an assessment, which falls to be carried out by the Hungarian authorities and the courts reviewing their decisions. (74)
D. Entering an alert in SIS II. Proportionality
110. The referring court’s doubts are, so far as is relevant here, confined to the prosecution of the entry ban and do not extend to its later entry in SIS II.
111. In the event that the Court takes the view that, notwithstanding the aforementioned silence on the part of the referring court, it may be useful to provide the referring court with some indication as to how the entry ban is reflected in SIS II, I shall give my opinion on this point.
112. Knowledge of an entry ban by the other Member States is necessary if the ban is to be of practical effect. (75) In order to facilitate access by Member States to information on bans which other Member States have issued on the basis of return decisions, such bans may be reflected in SIS II, (76) pursuant to Regulation No 1987/2006, (77) provided that two conditions are also met:
– The decision from which the alert results must have been adopted by the competent (administrative or judicial) authority, in accordance with the procedures laid down by national legislation, following an individual assessment. (78)
– The informing Member State must have concluded that the case is ‘adequate, relevant and important enough to warrant entry of the alert in SIS II’. (79)
113. Subject to the same conditions, the entry of an alert in SIS II for the purposes of refusing entry or stay is, however, compulsory ‘where the decision … is based on a threat to public policy or public security or to national security which the presence of the third-country national in question in the territory of a Member State may pose’ (Article 24(2) of Regulation No 1987/2006). (80)
114. The entry is therefore subject in any event to the requirement of proportionality laid down in Article 21 of Regulation No 1987/2006. Although the regulation does not say as much, the usefulness of the assessment requires that it be carried out before the alert in question is entered. (81)
115. That requirement is justified because the entry of an alert on refusal of entry is capable of affecting the rights, even the fundamental rights, (82) of individuals. It has obvious consequences for access to the Schengen area (83) and, by extension, at least potentially for other rights such as the right to respect for private and family life.
116. However, the applicability of the principle of proportionality to the entry of alerts in SIS II where this is compulsory (pursuant to Article 24(2) of Regulation No 1987/2006) is not unqualified. It could be argued that, in such cases, the EU legislature has itself conducted ex ante a proportionality assessment in respect of the serious conduct to which the provision in question refers.
117. I would add that, in any event, the proportionality assessment required by Article 21 of Regulation No 1987/2006 is confined to the entry of the alert: it does not affect the decision (the ban) on the basis of which that alert is issued. (84)
118. A negative result yielded by the proportionality analysis may ultimately mean that the alert on refusal of entry is not entered in SIS II.
119. In that event, the decision underlying the alert remains in force notwithstanding. If that decision is one imposing an entry ban on a third-country national on the ground that he or she constitutes a threat to public policy, internal security, national security, public health or international relations, its ‘pan-European’ reach also remains unchanged, even though the fact that no alert has been issued may make it difficult for the other Member States in the Schengen area to know about it.
V. Conclusion
120. In the light of the foregoing, I suggest that the answer to the first and second questions referred for a preliminary ruling by the Fővárosi Törvényszék (Budapest High Court, Hungary) should be as follows:
Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals
must be interpreted as meaning that it is not applicable where the authorities of a Member State issue a ban on entry and stay against such a national who is not located on the territory of that State and in respect of whom that State has not adopted a return decision on the ground that he or she may pose a threat to national security. To the same extent, the Charter of Fundamental Rights of the European Union is not applicable either.
Article 20 TFEU
must be interpreted as meaning that, before issuing such a ban on entry and stay, the authorities of the Member State concerned must take into account the personal and family circumstances of the person whose entry and stay is banned, in the case where that person is the parent of a minor who is a national of that Member State, as well as the impact of that ban on enjoyment of the rights inherent in, or derived from, EU citizenship.
1 Original language: Spanish.
2 I shall from now on refer to this simply as ‘entry ban’.
3 Directive of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ 2008 L 348, p. 98).
4 Regulation of the European Parliament and of the Council of 20 December 2006 on the establishment, operation and use of the second generation Schengen Information System (SIS II) (OJ 2006 L 381, p. 4; as amended by Regulation (EU) 2018/1861 of the European Parliament and of the Council of 28 November 2018 (OJ 2018 L 312, p. 14), as from its entry into force: Article 63 and the second subparagraph of Article 66(5). It is to be repealed as from the date of full application (Article 65 and the first subparagraph of Article 66(5)), which has not yet occurred.
5 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 at Schengen on 19 June 1990 (‘the CISA’), as amended by Regulation (EU) No 265/2010 of the European Parliament and of the Council of 25 March 2010 amending the Convention Implementing the Schengen Agreement and Regulation (EC) No 562/2006 as regards movement of persons with a long-stay visa (OJ 2010 L 85, p. 1). Article 64 of Regulation (EU) 2018/1861 of the European Parliament and of the Council of 28 November 2018 on the establishment, operation and use of the Schengen Information System (SIS) in the field of border checks, and amending the Convention implementing the Schengen Agreement, and amending and repealing Regulation No 1987/2006 deletes Article 25 of the CISA, which is henceforth replaced by Articles 27 to 30 of the same regulation; see also recital 29. The date on which the aforementioned Article 64 becomes effective is the date on which the regulation becomes fully applicable, in accordance with Article 66(2) and (5). At the hearing, the Commission confirmed that the conditions for such application were not yet met.
6 Article 5 sets out the conditions of entry for third-country nationals in the case of intended stays on the territory of the Member States of a duration of no more than 90 days in any 180-day period. Currently, this is Article 6 of Regulation (EU) 2016/399 of the European Parliament and of 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).
7 This account of the facts is taken from the description given by the referring court. It does not include other facts to which the Hungarian Government referred at the hearing but which do not appear in the order for reference.
8 That permit was for two years from 26 February 2019. According to the referring court, it ‘could not’ be extended because an alert in respect of M.D., based on the entry ban at issue in these proceedings, had been entered in SIS II.
9 ‘The Immigration Police’.
10 M.D. had previously received a (suspended) one-year prison sentence for the offence of encouraging illegal immigration by offering to lend assistance with unauthorised border crossings.
11 The effects of the annulment also extended to the decision of 27 August 2018. The court emphasised that the Immigration Police had not demonstrated that the conditions laid down in Paragraph 33 of Law I of 2007, that is to say, the existence of a real, immediate, serious and current threat, were met, since it had based its decision on the opinion of the Constitutional Protection Office, which had not taken part in the case as a specialist authority.
12 See the partial transcript in point 13 of this Opinion.
13 He later attempted to return to Hungary. Following a COVID test conducted at the border, it was discovered that he could not enter that country because of the entry ban imposed on him. According to the Hungarian Government, his current whereabouts are unknown.
14 The Immigration Police went on to say that ordering the removal (sic) of the person concerned was considered to be a proportionate limitation, notwithstanding the existence at that time of a valid Slovak residence permit.
15 Paragraph 10 of its written observations.
16 I shall not therefore examine the loss of the right of residence which M. D. had enjoyed, though this is not to say that some of my later submissions will not be of use to the Court if it decides to revisit this issue.
17 The contested decision comprises the entry ban and the inclusion of the alert in SIS II, although there does not appear to be any dispute about the latter, in respect of which the referring court does not directly raise any doubts (referring indirectly to SIS II in the fourth question). I shall, in any event, analyse the issues relating to SIS II at the end of this Opinion.
18 Paragraph 20 of its written observations.
19 Paragraph 43 of its written observations.
20 Annex to Commission Recommendation (EU) 2017/2338 of 16 November 2017 establishing a common ‘Return Handbook’ to be used by Member States’ competent authorities when carrying out return-related tasks (OJ 2017 L 339, p. 83).
21 Paragraph 41 of its written observations. It is important to bear in mind, however, that the Court gives priority to the relevant provision of the directive, which ‘cannot be amended by a Commission recommendation, which has no binding effect’: judgment of 3 June 2021, Westerwaldkreis (C‑546/19, EU:C:2021:432; ‘the judgment in Westerwaldkreis’, paragraph 47).
22 In the light of paragraphs 42 and 43 of the Hungarian Government’s observations, the descriptor ‘independent’ reflects the fact that there is no removal order.
23 Article 2(1). There is nothing to indicate that Hungary decided not to apply that directive to third-country nationals in the cases provided for in paragraph 2 of that article.
24 Article 3(2) of Directive 2008/115 defines an illegal stay as ‘the presence on the territory of a Member State, of a third-country national who does not fulfil, or no longer fulfils the conditions of entry as set out in Article 5 of the Schengen Borders Code or other conditions for entry, stay or residence in that Member State’. Emphasis added.
25 Judgments of 7 June 2016, Affum (C‑47/15, EU:C:2016:408, paragraph 48), and of 17 December 2020, Commission v Hungary (Reception of applicants for international protection) (C‑808/18, EU:C:2020:1029, paragraph 243). In the operative part of the judgment in Westerwaldkreis, the Court stated that Directive 2008/115 ‘applies to a ban on entry and residence issued by a Member State which has not exercised the option provided for in Article 2(2)(b) of that directive against a third-country national who is on its territory and is the subject of an expulsion order, for reasons of public security and public policy, on the basis of a previous criminal conviction’.
26 Judgment of 8 May 2018, K.A. and Others (Family reunification in Belgium) (C‑82/16, EU:C:2018:308, ‘the judgment in K.A. and Others’, paragraph 101).
27 Judgments of 6 December 2011, Achughbabian (C‑329/11, EU:C:2011:807, paragraphs 31 and 45), and of 7 June 2016, Affum (C‑47/15, EU:C:2016:408, paragraph 87).
28 According to Article 3(3) of Directive 2008/115, return is ‘the process of a third-country national going back – whether in voluntary compliance with an obligation to return, or enforced – to … his or her country of origin, or a country of transit …, or another third country, to which [he or she] voluntarily decides to return and in which he or she will be accepted’.
29 The legal impossibility of enforcing a return order by removing the third-country national who is staying illegally on its territory does not release the Member State concerned from the obligation to issue such an order, although it does allow it to postpone the enforcement of that order: the judgment in Westerwaldkreis, paragraph 54.
30 Article 1 and recitals 6 and 30 of Directive 2008/115.
31 I shall explain below that, under Regulation No 1987/2006, there is no obligation to enter in SIS II alerts in respect of third-country nationals which are based on entry bans for failure to comply with national provisions on entry or residence: see point 112.
32 Judgment of 17 September 2020, JZ (Custodial sentence in the case of an entry ban) (C‑806/18, EU:C:2020:724, paragraph 32).
33 Recital 14 of Directive 2008/115. Nonetheless, not all return decisions have to be accompanied by an entry ban: see Article 11(1); and, below, point 112 of this Opinion, concerning the optional nature of entering certain alerts in SIS II.
34 A return decision is the consequence of an illegal stay on the territory of a Member State. The ban precludes any possible post-return entry into EU territory, making any such entry automatically illegal: see judgment of 26 July 2017, Ouhrami (C‑225/16, EU:C:2017:590, ‘the judgment in Ouhrami’, paragraph 49 et seq.). Technically, however, Member States are free to issue entry bans at the same time as or following return orders: Article 6(6) of Directive 2008/115. For reasons of efficiency, the current proposal for a recast of the directive includes, as a new feature not present under the present scheme, a provision for the adoption of entry bans without a prior return decision in cases where the illegal stay is detected for the first time in the course of border checks carried out on exit: Article 13(2) of the Proposal for a Directive of the European Parliament and of the Council on common standards and procedures in Member States for returning illegally staying third-country nationals (recast) (COM(2018) 634 final).
35 Article 11(1). In other circumstances, an entry ban is possible but not compulsory.
36 Judgments in Ouhrami, paragraph 49, and Westerwaldkreis, paragraph 52.
37 Judgment in Westerwaldkreis, paragraph 54.
38 See, for example, Council Decision (CFSP) 2022/331 of 25 February 2022 amending Decision 2014/145/CFSP concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2022 L 52, p. 1). The annex thereto lists the persons in respect of whom Member States must adopt the measures necessary to prevent entry into their territories.
39 This does not mean that the Member State is relieved of all constraints, whether procedural or substantive, deriving from EU law: see point 96 et seq. below.
40 Article 24(2) of Regulation No 1987/2006, in contrast to paragraph 3 of the same provision. The compulsory nature of such entries is clear in language versions such as English, French, German, Italian and Portuguese. The Spanish version, which originally used the verb ‘podrá’ (may), was later corrected (corrigendum to Regulation No 1987/2006 in OJ 2021 L 224, p. 42).
41 According to the judgment of 16 January 2018, E (C‑240/17, EU:C:2018:8, paragraph 37 and the operative part), although there is nothing to stop the consultations taking place before the decision on which the alert is based is taken, the obligation to hold such consultations is not triggered until the alert has been issued. Regulation 2018/1861 corrects that rule.
42 See judgment of 16 January 2018, E (C‑240/17, EU:C:2018:8). In principle, the placing of an alert on refusal of entry in a Member State’s national database, on the ground that the person concerned constitutes a threat to the public policy, national security, public health or international relations of one of the Member States, precludes that person from entering the Schengen area, in accordance with Article 6(1)(e) of Regulation 2016/399.
43 In the case where the return decision is issued before the proceedings have been concluded, the third-country national leaving the territory of the Member State concerned makes a ‘voluntary departure’, within the meaning of Article 7 of Directive 2008/115, if that decision grants him or her a period within which to leave. If no such period is granted, the foreign national may be regarded as simply complying with the obligation to leave imposed on him or her by the return decision. A removal order will no longer be necessary but a ban on entry and stay in the Member State will still be possible (Article 11(1), in fine) or even compulsory (Article 11(1)(a)) and must be issued in accordance with that directive.
44 A stay of proceedings may nonetheless be appropriate if there are grounds for assuming that the person concerned has not returned within the meaning of Directive 2008/115. By analogy, see judgment of 15 February 2016, N. (C‑601/15 PPU, EU:C:2016:84, paragraphs 75 and 76).
45 This is the solution proposed by the Return Handbook, paragraph 11.3, p. 58.
46 Throughout the hearing, the Commission made this point repeatedly in reply to the Court’s questions.
47 Directive 2008/115 does in fact take them into account, as is clear, inter alia, from Article 6(2), in fine, Article 7(4), or Article 11(2). On its scope, however, see judgment of 30 November 2009, Kadzoev (C‑357/09 PPU, EU:C:2009:741, paragraphs 70 and 71).
48 Judgment in K.A. and Others, paragraph 44 and the case-law cited.
49 Article 11(2), in fine, and (3), second subparagraph, respectively.
50 In EU law, those concepts are not necessarily the same in all of the legislative texts that use them. The dissimilarity exists even between texts relating to migration, as is mentioned in the Return Handbook, section 11.3, p. 59, and, inter alia, the judgment of 12 December 2019, E.P. (Threat to public policy) (C‑380/18, EU:C:2019:1071, paragraph 31 et seq.), in keeping with the Opinion of Advocate General Pitruzzella in that case (C‑380/18, EU:C:2019:609).
51 In this situation, governed by Article 6(2) of Directive 2008/115, an entry ban under Article 11, which is designed to make a return order effective throughout the European Union, would be meaningless.
52 In those circumstances, governed by Article 6(3) of Directive 2008/115, it is for the second Member State to bring the illegal stay to an end. See judgment of 7 June 2016, Affum (C‑47/15, EU:C:2016:408, paragraphs 84 and 86).
53 See Article 72 TFEU and, with regard to the scope thereof, judgment of 17 December 2020, Commission v Hungary (Reception of applicants for international protection) (C‑808/18, EU:C:2020:1029).
54 There is no certainty that those consultations took place: the information provided by M. D. and the Hungarian Government is inconsistent on this question, which falls to be determined by the referring court.
55 From a broader systematic point of view (which would also encompass Article 24(1) of Regulation No 1987/2006), I should recall that only alerts arising from decisions adopted on the basis of an individual assessment can be entered in SIS II: see point 112 below.
56 Which does not mean, of course, that a return order or an entry ban cannot be issued, only that the interests involved must be taken into consideration, on the basis of all the data available, before a decision is adopted in this regard.
57 Article 11(2) of Directive 2008/115.
58 See, inter alia, the judgment of 11 March 2021, État belge (Return of the parent of a minor) (C‑112/20, EU:C:2021:197, paragraph 35 and the case-law cited).
59 Cited above, operative part.
60 That assertion does not require any further justification, in my view. I would refer generally to the judgments of 16 February 2022, Hungary v Parliament and Council (C‑156/21, EU:C:2022:97, paragraphs 124 to 126), and of 16 February 2022, Poland v Parliament and Council (C‑157/21, EU:C:2022:98, paragraphs 142 to 144). In connection with Article 72 TFEU, see, inter alia, judgments of 2 April 2020, Commission v Poland, Hungary and Czech Republic (Temporary mechanism for the relocation of applicants for international protection) (C‑715/17, C‑718/17 and C‑719/17, EU:C:2020:257, paragraph 143), and of 2 July 2020, Stadt Frankfurt am Main (C‑18/19, EU:C:2020:511, paragraph 28).
61 See, among many, the judgment in K.A. and Others; judgments of 27 February 2020, Subdelegación del Gobierno en Ciudad Real (Spouse of a Union citizen) (C‑836/18, EU:C:2020:119; ‘the judgment in Subdelegación del Gobierno en Ciudad Real’); of 5 May 2022, Subdelegación del Gobierno en Toledo (Residence of a family member – Insufficient resources) (C‑451/19 and C‑532/19, EU:C:2022:354; ‘the judgment in Subdelegación del Gobierno en Toledo’); and of 7 September 2022, Staatssecretaris van Justitie en Veiligheid (Nature of the right of residence under Article 20 TFEU) (C‑624/20, EU:C:2022:639, paragraph 51). It is settled case-law that it is not necessary, in order for that consequence to arise, for the EU citizen to have exercised his or her freedom of movement.
62 Judgments in K.A. and Others, paragraph 52; in Subdelegación del Gobierno en Ciudad Real, paragraph 40 et seq.; and in Subdelegación del Gobierno en Toledo, paragraph 48.
63 The dependency may arise in relation to citizens who are minors or of age (judgment in Subdelegación del Gobierno en Ciudad Real). Since there is nothing to indicate that this is the case with M. D’s partner, I shall not explore the matter any further.
64 Judgment in Subdelegación del Gobierno en Toledo, paragraph 65. See also the analysis in the judgment in K.A. and Others, paragraph 70 et seq.
65 See, inter alia, judgments of 13 September 2016, Rendón Marín (C‑165/14, EU:C:2016:675; ‘the judgment in Rendón Marín’); of 13 September 2016, CS (C‑304/14, EU:C:2016:674, paragraph 39); in K.A. and Others, paragraph 92; in Subdelegación del Gobierno en Ciudad Real, paragraphs 43 to 45; and in Subdelegación del Gobierno en Toledo, paragraph 52.
66 The Court held in the judgment of 6 October 2020, La Quadrature du Net and Others (C‑511/18, C‑512/18 and C‑520/18, EU:C:2020:791, paragraphs 135 and 136), that ‘Article 4(2) TEU provides that national security remains the sole responsibility of each Member State. That responsibility corresponds to the primary interest in protecting the essential functions of the State and the fundamental interests of society and encompasses the prevention and punishment of activities capable of seriously destabilising the fundamental constitutional, political, economic or social structures of a country and, in particular, of directly threatening society, the population or the State itself, such as terrorist activities’. It went on to underline the importance of the objective of safeguarding national security, as well as the difference, ‘by their nature and particular seriousness’, between potential threats to national security and the general risk that tensions or disturbances, even of a serious nature, affecting public security will arise. It therefore concludes that, subject to meeting the other requirements laid down in Article 52(1) of the Charter, the objective of safeguarding national security is capable of justifying measures entailing more serious interferences with fundamental rights than those which might be justified by other objectives.
67 See, inter alia, the judgment in Subdelegación del Gobierno en Toledo, paragraph 53. Other judgments are even more explicit in pointing out that, in the context of Article 20 TFEU, the assessment of the third-country national’s situation cannot leave out of account the right to respect for private and family life, as laid down in Article 7 of the Charter; that provision must, where appropriate, be read together with the obligation to take into consideration the child’s best interests, recognised in Article 24(2) of the Charter itself. See, for example, the judgments in Rendón Marín, paragraph 81, and K.A. and Others, paragraph 90.
68 I think it important to stress that the margin of discretion available to Member States would be different in other areas. Where Article 20 TFEU is concerned, the case-law of the Court supports the inference that the rationale informing citizenship status is paramount, supplanting that applicable in matters of immigration (which, as I said above, may vary). An account of this phenomenon has already been given in other Opinions, such as that of Advocate General Szpunar in Fahimian (C‑544/15, EU:C:2016:908), or the more recent Opinion of Advocate General Pikamäe in Stadt Frankfurt am Main (C‑18/19, EU:C:2020:130), as well as in the joined cases of R.N.N.S. and K.A (C‑225/19 and C‑226/19, EU:C:2020:679), to which I refer.
69 Judgments in Rendón Marín, paragraph 82, and K.A. and Others, paragraph 91. Although Member States remain best placed to assess threats to public order or public security on their territory, the scope of those concepts is not beyond the control of the EU institutions: judgments in Rendón Marín, paragraph 81, and Subdelegación del Gobierno en Toledo, paragraph 78 et seq.
70 Since the judgment in Rendón Marín; judgment in K.A. and Others, paragraph 91 and point 2 of the operative part, in fine.
71 Judgment in K.A. and Others, paragraph 94. The judgment in Subdelegación del Gobierno en Toledo, paragraph 53, goes on to mention as factors that may be taken into account the degree of severity of the convictions and the period between the date on which they are handed down and the date on which the authority gives its decision.
72 Which I think is quite likely to be not infrequently the case given the nature of the interests grouped together under the concept of ‘national security’.
73 See judgment of 10 May 2017, Chavez-Vílchez and Others (C‑133/15, EU:C:2017:354, paragraph 71), and judgment in Subdelegación del Gobierno en Toledo, paragraph 67.
74 Although, in a field that is not identical but is closely related, the Court recently ruled (judgment of 22 September 2022, Országos Idegenrendészeti Főigazgatóság and Others, C‑159/21, EU:C:2022:708), in response to another reference for a preliminary ruling from the Fővárosi Törvényszék (Budapest High Court), on assessments, subject to judicial review, based on opinions issued by competent national security authorities: the provisions of EU law analysed in that judgment ‘… preclude[e] national legislation under which the determining authority is systematically required, where bodies entrusted with specialist functions linked to national security have found, by way of a non-reasoned opinion, that a person constituted a danger to that security, to refuse to grant that person subsidiary protection, or to withdraw international protection previously granted to that person, on the basis of that opinion’.
75 SIS II is designed to make such information available to Member States connected to the system. Directive 2008/115 does not govern the entry of alerts in SIS II.
76 The optional nature of the entry follows from the verb used in Article 24(3) of Regulation No 1987/2006 in the cases to which it itself refers. This is confirmed by recital 25 of Commission Recommendation (EU) 2017/432 of 7 March 2017 on making returns more effective when implementing [Directive 2008/115] (OJ 2017 L 66, p. 15), as well as point 24(c) thereof. Entry is now compulsory pursuant to Article 24(1)(b) of Regulation 2018/1861.
77 The customary interpretation of Article 24(3) of Regulation No 1987/2006 posits its correspondence to Directive 2008/115, notwithstanding the inconsistencies identifiable between those two texts, which have been condemned by legal commentators and by the Commission in its evaluation of SIS II, having to do with the lack of harmonisation of the criteria for entering alerts. See the Report from the Commission to the European Parliament and the Council on the evaluation of the second generation Schengen Information System (SIS II) in accordance with art. 24(5), 43(3) and 50(5) of Regulation (EC) No 1987/2006 and art. 59(3) and 66(5) of Decision 2007/533/JHA (COM(2016) 880 final), point 4.4.2. See also the accompanying Commission Staff Working Document (SWD(2016) 450 final), point 7.3.
78 Article 24(1) of Regulation No 1987/2006.
79 Requirement of proportionality: Article 21 of Regulation No 1987/2006.
80 Footnote 40 above.
81 I disagree with the position taken by the Hungarian Government to the effect that the consideration of these factors, in circumstances such as those in the present case, is possible only via judicial review after the alert has been entered. Article 21(1) of Regulation 2018/1861 includes that timing clarification.
82 It entails, inter alia, the processing of personal data. Ensuring the right to the protection of such personal data is a primary concern in all instruments governing SIS II, which devote specific provisions to this matter.
83 As provided for in Article 14(1) of the Schengen Borders Code. In actual fact, those consequences derive more from the decision forming the basis of the alert contained in SIS II than from the entry of such an alert in the system: see judgment of 16 January 2018, E (C‑240/17, EU:C:2018:8, paragraph 43). SIS II performs a fundamental role in supporting the exchange between Member States of information on decisions of common interest. There is no denying, however, that entry in that system facilitates (and enhances) the effectiveness of such decisions.
84 The question, therefore, is how a third-country national’s fundamental rights would be affected by the fact that an alert relating to him is contained in SIS II; not, on the contrary, how those rights are affected by the ban on entry and stay forming the basis of that alert. I am nonetheless aware that, given the resonance which SIS II brings to such bans, it is easy to switch inadvertently from one matter to the other.