Unravelling Celaj

In the judgment of 1 October 2015 on case C-290/14, Celaj, the Court of Justice ruled that Directive 2008/115/EC, known as the Return Directive, in principle does not preclude legislation of a Member State which provides for the imposition of a prison sentence to migrants illegally staying as a result of their illegal re-entry into the country. The comment explores the apparently different attitude taken in the earlier and well known case-law (El Dridi, Achughbabian and Sagor). It first scrutinizes the Court’s methodology respectively adopted in that case-law and in Celaj while identifying the effet utile of the Return Directive and shows that Celaj cannot be seen as reversing the Court’s approach on the matter. The comment also highlights the full consistency of Celaj with Achughbabian and Sagor on the nature of State’s competence to establish provisions on criminal sanctions vis-à-vis irregular migrants as one shared with the Union. However, Celaj raises serious doubts in terms of substantive law: since it establishes no conditions and limits to the duration of a custodial sentence for migrants having illegally re-entered an EU Member State in breach of an entry-ban, it potentially undermines the effective return policy which is set as the main purpose of the Return Directive.