Type: Judgment

Authority: European Authorities: Euopean Union' Court of Justice

Date: 04/28/2011

Subject: The Court affirmed that the Directive on the return of illegal immigrants precludes national rules, such as Italian ones, imposing a prison term on an illegally staying third-country national who does not comply with an order to leave the national territory. A penalty such as that provided for by the Italian legislation is liable to jeopardize the attainment of the objective of introducing an effective policy for removal and repatriation in keeping with fundamental rights. The Court observes that the Directive on return has not been transposed into Italian law and stats that, in such situation, the unconditional and sufficiently precise provisions of the Directive, such as Article 15 and 16, may be relied on by individuals against the Member State which has failed to transpose them. The Court further observes that, although the Directive allows the Member States to adopt measures, including criminal measure, for cases where coercive measures have not led to removal, the Member States must in any event adjust their legislation in order to ensure compliance with European Union law. Thus they may not apply rules, even criminal rules, which are liable to jeopardize the achievement of the objectives pursued by the Directive. It is therefore for the referring court to refuse to apply national provisions providing for a prison sentence of between one and four years, because they are contrary to the result of the Directive, and to take account of the principle of the retroactive application of the more lenient penalty, which forms part of the constitutional traditions common to the Member States.

Parties: Hassen El Dridi, alias Soufi Karim

Classification: Dignity

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