Brussels, 23/04/2015 (Agence Europe) - Spain cannot impose a fine on a third country national residing illegally in the country instead of removal, the Court of Justice of the EU ruled on Thursday 23 April in case C-38/14.
The Court was responding to a question from a Spanish court that is hearing the case of an illegally resident Moroccan national who had been ordered to leave the country and was subject to a ban on re-entry for five years. Following an appeal by the Moroccan national, the removal decision was commuted by a court to a fine, in line with a Spanish law which allows the authorities to impose a fine on third country nationals residing illegally in Spain as an alternative to removal which is ordered only in cases where there are further aggravating circumstances (such as breach of common law). The substance of the question put by the Spanish court was whether this option is consistent with the directive (2008/115/EC) on the return of illegally residing non-EU nationals.
The Court ruled that it is not. It points out firstly that the aim of the directive is to put in place an effective return and repatriation policy and that the member states are, therefore, required speedily to take all necessary measures to remove illegally staying non-EU nationals. Furthermore, no provision in the directive allows member states to put in place a mechanism that, dependent on circumstances, permits them to impose either a fine or removal, the two measures being mutually exclusive. In providing this possibility, the Spanish rule impedes the effectiveness of the directive, the Court finds. (Francesco Gariazzo)