Conseil d’État (Council of State) – n° 230.579 – 19 March 2015 (Bensada Benallal)
In this case, a citizen of the EU had his right of residence withdrawn after having made false declarations to the Belgian authorities. He accuses the authorities of not having heard him prior to the contentious decision. In its ruling on the appeal in cassation on a decision handed down by the Conseil du Contentieux des étrangers (Council for Alien Law Litigation), the Conseil d’État reiterated that the CJEU had indicated, in essence, in its ruling C-249/13, 11 December 2014, Khaled Boudjlida, that an individual’s right to be heard by a national authority before the adoption by this authority of any decision that is likely to affect that individual’s interests adversely, forms an integral part of the respect for the rights of the defence as recognised by a general principle of EU law.
The Conseil d’État, however, remarked that the petitioner had not invoked the general principle of EU law upholding the rights of the defence before the Council for Alien Law Litigation and was pointing it out for the first time in the cassation appeal. Conseil d’État, however, does not accept admissibility of a plea that is raised for the first time in the cassation appeal and thus that was not referred to the first judge, unless the plea involves a “rule of public policy”.
The question then arises whether the general principle of EU law upholding the rights of the defence carries in the legal system of the European Union an equivalent importance to that held by the rules of public policy in the Belgian legal system and whether the principle of equivalence requires the right to raise a plea resulting from the breach of a general principle of EU law for the first time before the Conseil d’État hearing an appeal in cassation, as it is permitted in the national law for pleas based on public policy. The text of the request for a preliminary ruling is available on the website of the CJEU (Case C-161/15).
The full text is available on: JuriFast