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Case C-430/11: Judgment of the Court (First Chamber) of 6 December 2012 (reference for a preliminary ruling from the Tribunale di Rovigo — Italy) — Criminal proceedings against Md Sagor (Area of freedom, security and justice — Directive 2008/115/EC — Common standards and procedures for returning illegally staying third-country nationals — National legislation providing for a fine which may be replaced by an order for expulsion or home detention)
ECLI:EU:UNKNOWN:62011CA0430
62011CA0430
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26.1.2013
Official Journal of the European Union
C 26/13
(Case C-430/11) (<span class="super">1</span>)
(Area of freedom, security and justice - Directive 2008/115/EC - Common standards and procedures for returning illegally staying third-country nationals - National legislation providing for a fine which may be replaced by an order for expulsion or home detention)
2013/C 26/23
Language of the case: Italian
Referring court
Party in the main proceedings
Re:
Reference for a preliminary ruling — Tribunale di Rovigo — Interpretation of Articles 2, 4, 6, 7, 8, 15 and 16 of 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 (OJ 2008 L 348, p. 98) and Article 4(3) TEU — National legislation imposing a fine of between EUR 5 000 and EUR 10 000 on a foreign national who unlawfully enters or stays in the national territory — Whether it is possible for an illegal stay to constitute a criminal offence — Whether it is possible to replace the fine with immediate expulsion for a period of not less than five years or a penalty entailing curtailment of liberty (‘permanenza domiciliare’) — Member States’ obligations during the period for transposition of a directive
Operative part of the judgment
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:
—not precluding Member State legislation, such as that at issue in the main proceedings, which penalises illegal stays by third-country nationals by means of a fine which may be replaced by an expulsion order, and
—precluding Member State legislation which allows illegal stays by third-country nationals to be penalised by means of a home detention order without guaranteeing that the enforcement of that order must come to an end as soon as the physical transportation of the individual concerned out of that Member State is possible.
(<span class="super">1</span>) OJ C 25, 28.1.2012.