16.11.2020

Official Journal of the European Union

C 390/5

(Case C-806/18) (*)

(Reference for a preliminary ruling - Area of freedom, security and justice - Return of illegally staying third-country nationals - Directive 2008/115/EC - Article 11 - Entry ban - Third-country national against whom an entry ban was issued but who never left the Member State concerned - National legislation providing for a custodial sentence in the event of the third-country national staying in that Member State despite notice of the entry ban issued against him)

(2020/C 390/06)

Language of the case: Dutch

Referring court

Party/parties in the main proceedings

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, and in particular Article 11 thereof, must be interpreted as not precluding legislation of a Member State which provides that a custodial sentence may be imposed on an illegally staying third-country national for whom the return procedure set out in that directive has been exhausted but who has not actually left the territory of the Member States, where the criminal act consists in an unlawful stay with notice of an entry ban, issued in particular on account of that third-country national’s criminal record or the threat he represents to public policy or national security, provided that the criminal act is not defined as a breach of such an entry ban and that that legislation is sufficiently accessible, precise and foreseeable in its application in order to avoid all risk of arbitrariness, which is for the referring court to ascertain.

(*) Language of the case: Dutch.