EU/EEA Rights
Cases
D.M. Levin v Staatssecretaris van Justitie.
[1982] EUECJ R-53/81 (23 March 1982)
URL: http://www.bailii.org/eu/cases/EUECJ/1982/R5381.html
Cite as: [1982] EUECJ R-53/81, [1982] ECR 1035
1 . FREE MOVEMENT OF PERSONS – WORKER – ACTIVITY AS AN EMPLOYED PERSON – CONCEPTS – RESTRICTIVE INTERPRETATION – NOT POSSIBLE
( EEC TREATY , ART . 48 )
2 . FREE MOVEMENT OF PERSONS – WORKER – CONCEPT – EFFECTIVE AND GENUINE PURSUIT OF ACTIVITY AS AN EMPLOYED PERSON – INCOME LESS THAN THE MINIMUM LEGAL WAGE – IMMATERIAL
( EEC TREATY , ART . 48 )
3 . FREE MOVEMENT OF PERSONS – WORKER – MOTIVES PROMPTING SEARCH FOR EMPLOYMENT IN ANOTHER MEMBER STATE – OF NO ACCOUNT AS REGARDS RIGHT TO ENTER AND RESIDE
( EEC TREATY , ART . 48 )
1 . THE CONCEPTS OF ‘ ‘ WORKER ‘ ‘ AND ‘ ‘ ACTIVITY AS AN EMPLOYED PERSON ‘ ‘ DEFINE THE FIELD OF APPLICATION OF ONE OF THE FUNDAMENTAL FREEDOMS GUARANTEED BY THE TREATY AND , AS SUCH , MAY NOT BE INTERPRETED RESTRICTIVELY .
2 . THE PROVISIONS OF COMMUNITY LAW RELATING TO FREEDOM OF MOVEMENT FOR WORKERS ALSO COVER A NATIONAL OF A MEMBER STATE WHO PURSUES , WITHIN THE TERRITORY OF ANOTHER MEMBER STATE , AN ACTIVITY AS AN EMPLOYED PERSON WHICH YIELDS AN INCOME LOWER THAN THAT WHICH , IN THE LATTER STATE , IS CONSIDERED AS THE MINIMUM REQUIRED FOR SUBSISTENCE , WHETHER THAT PERSON SUPPLEMENTS THE INCOME FROM HIS ACTIVITY AS AN EMPLOYED PERSON WITH OTHER INCOME SO AS TO ARRIVE AT THAT MINIMUM OR IS SATISFIED WITH MEANS OF SUPPORT LOWER THAN THE SAID MINIMUM , PROVIDED THAT HE PURSUES AN ACTIVITY AS AN EMPLOYED PERSON WHICH IS EFFECTIVE AND GENUINE .
3 . THE MOTIVES WHICH MAY HAVE PROMPTED A WORKER OF A MEMBER STATE TO SEEK EMPLOYMENT IN ANOTHER MEMBER STATE ARE OF NO ACCOUNT AS REGARDS HIS RIGHT TO ENTER AND RESIDE IN THE TERRITORY OF THE LATTER STATE PROVIDED THAT HE THERE PURSUES OR WISHES TO PURSUE AN EFFECTIVE AND GENUINE ACTIVITY .
IN CASE 53/81
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE JUDICIAL DIVISION OF THE NETHERLANDS RAAD VAN STATE ( STATE COUNCIL ) FOR A PRELIMINARY RULING IN THE CASE PENDING BEFORE THAT COURT BETWEEN
D . M . LEVIN , AMSTERDAM ,
AND
STAATSSECRETARIS VAN JUSTITIE ( SECRETARY OF STATE FOR JUSTICE )
ON THE INTERPRETATION OF ARTICLE 48 OF THE EEC TREATY AND OF CERTAIN PROVISIONS OF COMMUNITY DIRECTIVES AND REGULATIONS ON THE FREE MOVEMENT OF PERSONS WITHIN THE COMMUNITY ,
1 BY INTERLOCUTORY JUDGMENT OF 28 NOVEMBER 1980 , RECEIVED AT THE COURT ON 11 MARCH 1981 , THE RAAD VAN STATE ( STATE COUNCIL ) OF THE NETHERLANDS REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY THREE QUESTIONS RELATING TO THE INTERPRETATION OF ARTICLE 48 OF THE TREATY AND OF CERTAIN PROVISIONS OF COMMUNITY REGULATIONS AND DIRECTIVES ON THE FREE MOVEMENT OF PERSONS WITHIN THE COMMUNITY .
2 THE APPELLANT IN THE MAIN PROCEEDINGS , MRS LEVIN , OF BRITISH NATIONALITY AND THE WIFE OF A NATIONAL OF A NON-MEMBER COUNTRY , APPLIED FOR A PERMIT TO RESIDE IN THE NETHERLANDS . THE PERMIT WAS REFUSED , ON THE BASIS OF NETHERLANDS LEGISLATION , ON THE GROUND , AMONGST OTHERS , THAT MRS LEVIN WAS NOT ENGAGED IN A GAINFUL OCCUPATION IN THE NETHERLANDS AND THEREFORE COULD NOT BE DESCRIBED AS A ‘ ‘ FAVOURED EEC CITIZIN ‘ ‘ WITHIN THE MEANING OF THAT LEGISLATION .
3 MRS LEVIN APPLIED TO THE STAATSSECRETARIS VAN JUSTITIE ( SECRETARY OF STATE FOR JUSTICE ) FOR THE DECISION TO BE RECONSIDERED . HER APPLICATION WAS REJECTED AND SHE APPEALED TO THE RAAD VAN STATE CLAIMING THAT IN THE MEANTIME SHE HAD TAKEN UP AN ACTIVITY AS AN EMPLOYED PERSON IN THE NETHERLANDS AND THAT , IN ANY EVENT , SHE AND HER HUSBAND HAD PROPERTY AND INCOME MORE THAN SUFFICIENT TO SUPPORT THEMSELVES , EVEN WITHOUT PURSUING SUCH AN ACTIVITY .
4 SINCE THE RAAD VAN STATE CONSIDERED THAT THE JUDGMENT TO BE GIVEN DEPENDED ON THE INTERPRETATION OF COMMUNITY LAW IT REFERRED THE FOLLOWING THREE QUESTIONS TO THE COURT FOR A PRELIMINARY RULING :
‘ ‘ 1 . SHOULD THE CONCEPT OF ‘ FAVOURED EEC CITIZEN ‘ , WHICH IN THE NETHERLANDS LEGISLATION IS TAKEN TO MEAN A NATIONAL OF A MEMBER STATE AS DESCRIBED IN ARTICLE 1 OF DIRECTIVE 64/221/EEC OF THE COUNCIL OF THE EUROPEAN COMMUNITIES OF 25 FEBRUARY 1964 AND IS USED IN THAT LEGISLATION TO DETERMINE THE CATEGORY OF PERSONS TO WHOM ARTICLE 48 OF THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY , REGULATION ( EEC ) NO 1612/68 OF 15 OCTOBER 1968 AND DIRECTIVES 64/221/EEC OF 25 FEBRUARY 1964 AND 68/360/EEC OF 15 OCTOBER 1968 ADOPTED BY THE COUNCIL OF THE EUROPEAN COMMUNITIES IN APPLICATION OF ARTICLE 48 APPLY , ALSO BE TAKEN TO MEAN A NATIONAL OF A MEMBER STATE WHO IN THE TERRITORY OF ANOTHER MEMBER STATE PURSUES AN ACTIVITY , WHETHER PAID OR NOT AS AN EMPLOYED PERSON , OR PROVIDES SERVICES TO SUCH A LIMITED EXTENT THAT IN SO DOING HE EARNS INCOME WHICH IS LESS THAN THAT WHICH IN THE LAST-MENTIONED MEMBER STATE IS CONSIDERED AS THE MINIMUM NECESSARY TO ENABLE HIM TO SUPPORT HIMSELF?
2.IN THE ANSWER TO QUESTION 1 , SHOULD A DISTINCTION BE DRAWN BETWEEN , ON THE ONE HAND , PERSONS WHO APART FROM OR IN ADDITION TO THEIR INCOME DERIVED FROM LIMITED EMPLOYMENT HAVE OTHER INCOME ( FOR EXAMPLE FROM PROPERTY OR FROM THE EMPLOYMENT OF THEIR SPOUSES LIVING WITH THEM WHO ARE NOT NATIONALS OF A MEMBER STATE ) AS A RESULT OF WHICH THEY HAVE SUFFICIENT MEANS OF SUPPORT AS REFERRED TO IN QUESTION 1 AND , ON THE OTHER HAND , PERSONS WHO DO NOT HAVE SUCH ADDITIONAL INCOME AT THEIR DISPOSAL AND YET FOR REASONS OF THEIR OWN WISH TO MAKE DO WITH AN INCOME LESS THAN WHAT IS GENERALLY CONSIDERED TO BE THE MINIMUM REQUIRED?
3.ASSUMING THAT QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE , CAN THE RIGHT OF SUCH A WORKER TO FREE ADMISSION INTO AND ESTABLISHMENT IN THE MEMBER STATE IN WHICH HE PURSUES OR WISHES TO PURSUE AN ACTIVITY OR PROVIDES OR WISHES TO PROVIDE SERVICES TO A LIMITED EXTENT STILL BE RELIED UPON IF IT IS DEMONSTRATED OR SEEMS LIKELY THAT HIS CHIEF MOTIVE FOR RESIDING IN THAT MEMBER STATE IS FOR A PURPOSE OTHER THAN THE PURSUIT OF AN ACTIVITY OR PROVISION OF SERVICES TO A LIMITED EXTENT?
‘ ‘
5 ALTHOUGH THESE QUESTIONS , AS WORDED , ARE CONCERNED NOT ONLY WITH FREEDOM OF MOVEMENT FOR WORKERS BUT ALSO WITH FREEDOM OF ESTABLISHMENT AND FREEDOM TO PROVIDE SERVICES , IT IS APPARENT FROM THE PARTICULARS OF THE DISPUTE IN THE MAIN PROCCEEDINGS THAT THE NATIONAL COURT REALLY HAS IN MIND ONLY THE ISSUE OF FREEDOM OF MOVEMENT FOR WORKERS . THE ANSWERS TO BE GIVEN SHOULD THEREFORE BE CONFINED TO THOSE ASPECTS WHICH HAVE A BEARING ON THAT FREEDOM .
FIRST AND SECOND QUESTIONS
6 IN ITS FIRST AND SECOND QUESTIONS , WHICH SHOULD BE CONSIDERED TOGETHER , THE NATIONAL COURT IS ESSENTIALLY ASKING WHETHER THE PROVISIONS OF COMMUNITY LAW RELATING TO FREEDOM OF MOVEMENT FOR WORKERS ALSO COVER A NATIONAL OF A MEMBER STATE WHOSE ACTIVITY AS AN EMPLOYED PERSON IN THE TERRITORY OF ANOTHER MEMBER STATE PROVIDES HIM WITH AN INCOME LESS THAN THE MINIMUM REQUIRED FOR SUBSISTENCE WITHIN THE MEANING OF THE LEGISLATION OF THE SECOND MEMBER STATE . IN PARTICULAR THE COURT ASKS WHETHER THOSE PROVISIONS COVER SUCH A PERSON WHERE HE EITHER SUPPLEMENTS HIS INCOME FROM HIS ACTIVITY AS AN EMPLOYED PERSON WITH OTHER INCOME SO AS TO ARRIVE AT THAT MINIMUM OR IS CONTENT WITH MEANS OF SUPPORT WHICH FALL BELOW IT .
7 UNDER ARTICLE 48 OF THE TREATY FREEDOM OF MOVEMENT FOR WORKERS IS TO BE SECURED WITHIN THE COMMUNITY . THAT FREEDOM IS TO ENTAIL THE ABOLITION OF ANY DISCRIMINATION BASED ON NATIONALITY BETWEEN WORKERS OF THE MEMBER STATES AS REGARDS EMPLOYMENT , REMUNERATION AND OTHER CONDITIONS OF WORK AND IS TO INCLUDE THE RIGHT , SUBJECT TO LIMITATIONS JUSTIFIED ON GROUNDS OF PUBLIC POLICY , PUBLIC SECURITY OR PUBLIC HEALTH , TO ACCEPT OFFERS OF EMPLOYMENT ACTUALLY MADE , TO MOVE FREELY WITHIN THE TERRITORY OF MEMBER STATES FOR THIS PURPOSE , TO STAY IN A MEMBER STATE FOR THE PURPOSE OF EMPLOYMENT AND TO REMAIN THERE AFTER THE TERMINATION OF THAT EMPLOYMENT .
8 THAT PROVISION WAS IMPLEMENTED INTER ALIA BY REGULATION ( EEC ) NO 1612/68 OF THE COUNCIL OF 15 OCTOBER 1968 ON FREEDOM OF MOVEMENT FOR WORKERS WITHIN THE COMMUNITY ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1968 ( II ), P . 475 ) AND COUNCIL DIRECTIVE 68/360/EEC OF THE SAME DATE ON THE ABOLITION OF RESTRICTIONS ON MOVEMENT AND RESIDENCE WITHIN THE COMMUNITY FOR WORKERS OF THE MEMBER STATES AND THEIR FAMILIES ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1968 ( II ), P . 485 ). UNDER ARTICLE 1 OF REGULATION ( EEC ) NO 1612/68 ANY NATIONAL OF A MEMBER STATE IS , IRRESPECTIVE OF HIS PLACE OF RESIDENCE , TO HAVE THE RIGHT TO TAKE UP ACTIVITY AS AN EMPLOYED PERSON , AND TO PURSUE SUCH ACTIVITY , WITHIN THE TERRITORY OF ANOTHER MEMBER STATE IN ACCORDANCE WITH THE PROVISIONS LAID DOWN BY LAW , REGULATION OR ADMINISTRATIVE ACTION GOVERNING THE EMPLOYMENT OF NATIONALS OF THAT STATE .
9 ALTHOUGH THE RIGHTS DERIVING FROM THE PRINCIPLE OF FREEDOM OF MOVEMENT FOR WORKERS AND MORE PARTICULARLY THE RIGHT TO ENTER AND STAY IN THE TERRITORY OF A MEMBER STATE ARE THUS LINKED TO THE STATUS OF A WORKER OR OF A PERSON PURSUING AN ACTIVITY AS AN EMPLOYED PERSON OR DESIROUS OF SO DOING , THE TERMS ‘ ‘ WORKER ‘ ‘ AND ‘ ‘ ACTIVITY AS AN EMPLOYED PERSON ‘ ‘ ARE NOT EXPRESSLY DEFINED IN ANY OF THE PROVISIONS ON THE SUBJECT . IT IS APPROPRIATE , THEREFORE , IN ORDER TO DETERMINE THEIR MEANING , TO HAVE RECOURSE TO THE GENERALLY RECOGNIZED PRINCIPLES OF INTERPRETATION , BEGINNING WITH THE ORDINARY MEANING TO BE ATTRIBUTED TO THOSE TERMS IN THEIR CONTEXT AND IN THE LIGHT OF THE OBJECTIVES OF THE TREATY .
10 THE NETHERLANDS AND DANISH GOVERNMENTS HAVE MAINTAINED THAT THE PROVISIONS OF ARTICLE 48 MAY ONLY BE RELIED UPON BY PERSONS WHO RECEIVE A WAGE AT LEAST COMMENSURATE WITH THE MEANS OF SUBSISTENCE CONSIDERED AS NECESSARY BY THE LEGISLATION OF THE MEMBER STATE IN WHICH THEY WORK , OR WHO WORK AT LEAST FOR THE NUMBER OF HOURS CONSIDERED AS USUAL IN RESPECT OF FULL-TIME EMPLOYMENT IN THE SECTOR IN QUESTION . IN THE ABSENCE OF ANY PROVISIONS TO THAT EFFECT IN COMMUNITY LEGISLATION , IT IS SUGGESTED THAT IT IS NECESSARY TO HAVE RECOURSE TO NATIONAL CRITERIA FOR THE PURPOSE OF DEFINING BOTH THE MINIMUM WAGE AND THE MINIMUM NUMBER OF HOURS .
11 THAT ARGUMENT CANNOT , HOWEVER , BE ACCEPTED . AS THE COURT HAS ALREADY STATED IN ITS JUDGMENT OF 19 MARCH 1964 IN CASE 75/63 HOEKSTRA ( NEE UNGER ) ( 1964 ) ECR 1977 THE TERMS ‘ ‘ WORKER ‘ ‘ AND ‘ ‘ ACTIVITY AS AN EMPLOYED PERSON ‘ ‘ MAY NOT BE DEFINED BY REFERENCE TO THE NATIONAL LAWS OF THE MEMBER STATES BUT HAVE A COMMUNITY MEANING . IF THAT WERE NOT THE CASE , THE COMMUNITY RULES ON FREEDOM OF MOVEMENT FOR WORKERS WOULD BE FRUSTRATED , AS THE MEANING OF THOSE TERMS COULD BE FIXED AND MODIFIED UNILATERALLY , WITHOUT ANY CONTROL BY THE COMMUNITY INSTITUTIONS , BY NATIONAL LAWS WHICH WOULD THUS BE ABLE TO EXCLUDE AT WILL CERTAIN CATEGORIES OF PERSONS FROM THE BENEFIT OF THE TREATY .
12 SUCH WOULD , IN PARTICULAR , BE THE CASE IF THE ENJOYMENT OF THE RIGHTS CONFERRED BY THE PRINCIPLE OF FREEDOM OF MOVEMENT FOR WORKERS COULD BE MADE SUBJECT TO THE CRITERION OF WHAT THE LEGISLATION OF THE HOST STATE DECLARES TO BE A MINIMUM WAGE , SO THAT THE FIELD OF APPLICATION RATIONE PERSONAE OF THE COMMUNITY RULES ON THIS SUBJECT MIGHT VARY FROM ONE MEMBER STATE TO ANOTHER . THE MEANING AND THE SCOPE OF THE TERMS ‘ ‘ WORKER ‘ ‘ AND ‘ ‘ ACTIVITY AS AN EMPLOYED PERSON ‘ ‘ SHOULD THUS BE CLARIFIED IN THE LIGHT OF THE PRINCIPLES OF THE LEGAL ORDER OF THE COMMUNITY .
13 IN THIS RESPECT IT MUST BE STRESSED THAT THESE CONCEPTS DEFINE THE FIELD OF APPLICATION OF ONE OF THE FUNDAMENTAL FREEDOMS GUARANTEED BY THE TREATY AND , AS SUCH , MAY NOT BE INTERPRETED RESTRICTIVELY .
14 IN CONFORMITY WITH THIS VIEW THE RECITALS IN THE PREAMBLE TO REGULATION ( EEC ) NO 1612/68 CONTAIN A GENERAL AFFIRMATION OF THE RIGHT OF ALL WORKERS IN THE MEMBER STATES TO PURSUE THE ACTIVITY OF THEIR CHOICE WITHIN THE COMMUNITY , IRRESPECTIVE OF WHETHER THEY ARE PERMANENT , SEASONAL OR FRONTIER WORKERS OR WORKERS WHO PURSUE THEIR ACTIVITIES FOR THE PURPOSE OF PROVIDING SERVICES . FURTHERMORE , ALTHOUGH ARTICLE 4 OF DIRECTIVE 68/36/EEC GRANTS THE RIGHT OF RESIDENCE TO WORKERS UPON THE MERE PRODUCTION OF THE DOCUMENT ON THE BASIS OF WHICH THEY ENTERED THE TERRITORY AND OF A CONFIRMATION OF ENGAGEMENT FROM THE EMPLOYER OR A CERTIFICATE OF EMPLOYMENT , IT DOES NOT SUBJECT THIS RIGHT TO ANY CONDITION RELATING TO THE KIND OF EMPLOYMENT OR TO THE AMOUNT OF INCOME DERIVED FROM IT .
15 AN INTERPRETATION WHICH REFLECTS THE FULL SCOPE OF THESE CONCEPTS IS ALSO IN CONFORMITY WITH THE OBJECTIVES OF THE TREATY WHICH INCLUDE , ACCORDING TO ARTICLES 2 AND 3 , THE ABOLITION , AS BETWEEN MEMBER STATES , OF OBSTACLES TO FREEDOM OF MOVEMENT FOR PERSONS , WITH THE PURPOSE INTER ALIA OF PROMOTING THROUGHOUT THE COMMUNITY A HARMONIOUS DEVELOPMENT OF ECONOMIC ACTIVITIES AND A RAISING OF THE STANDARD OF LIVING . SINCE PART-TIME EMPLOYMENT , ALTHOUGH IT MAY PROVIDE AN INCOME LOWER THAN WHAT IS CONSIDERED TO BE THE MINIMUM REQUIRED FOR SUBSISTENCE , CONSTITUTES FOR A LARGE NUMBER OF PERSONS AN EFFECTIVE MEANS OF IMPROVING THEIR LIVING CONDITIONS , THE EFFECTIVENESS OF COMMUNITY LAW WOULD BE IMPAIRED AND THE ACHIEVEMENT OF THE OBJECTIVES OF THE TREATY WOULD BE JEOPARDIZED IF THE ENJOYMENT OF RIGHTS CONFERRED BY THE PRINCIPLE OF FREEDOM OF MOVEMENT FOR WORKERS WERE RESERVED SOLELY TO PERSONS ENGAGED IN FULL-TIME EMPLOYMENT AND EARNING , AS A RESULT , A WAGE AT LEAST EQUIVALENT TO THE GUARANTEED MINIMUM WAGE IN THE SECTOR UNDER CONSIDERATION .
16 IT FOLLOWS THAT THE CONCEPTS OF ‘ ‘ WORKER ‘ ‘ AND ‘ ‘ ACTIVITY AS AN EMPLOYED PERSON ‘ ‘ MUST BE INTERPRETED AS MEANING THAT THE RULES RELATING TO FREEDOM OF MOVEMENT FOR WORKERS ALSO CONCERN PERSONS WHO PURSUE OR WISH TO PURSUE AN ACTIVITY AS AN EMPLOYED PERSON ON A PART-TIME BASIS ONLY AND WHO , BY VIRTUE OF THAT FACT OBTAIN OR WOULD OBTAIN ONLY REMUNERATION LOWER THAN THE MINIMUM GUARANTEED REMUNERATION IN THE SECTOR UNDER CONSIDERATION . IN THIS REGARD NO DISTINCTION MAY BE MADE BETWEEN THOSE WHO WISH TO MAKE DO WITH THEIR INCOME FROM SUCH AN ACTIVITY AND THOSE WHO SUPPLEMENT THAT INCOME WITH OTHER INCOME , WHETHER THE LATTER IS DERIVED FROM PROPERTY OR FROM THE EMPLOYMENT OF A MEMBER OF THEIR FAMILY WHO ACCOMPANIES THEM .
17 IT SHOULD HOWEVER BE STATED THAT WHILST PART-TIME EMPLOYMENT IS NOT EXCLUDED FROM THE FIELD OF APPLICATION OF THE RULES ON FREEDOM OF MOVEMENT FOR WORKERS , THOSE RULES COVER ONLY THE PURSUIT OF EFFECTIVE AND GENUINE ACTIVITIES , TO THE EXCLUSION OF ACTIVITIES ON SUCH A SMALL SCALE AS TO BE REGARDED AS PURELY MARGINAL AND ANCILLARY . IT FOLLOWS BOTH FROM THE STATEMENT OF THE PRINCIPLE OF FREEDOM OF MOVEMENT FOR WORKERS AND FROM THE PLACE OCCUPIED BY THE RULES RELATING TO THAT PRINCIPLE IN THE SYSTEM OF THE TREATY AS A WHOLE THAT THOSE RULES GUARANTEE ONLY THE FREE MOVEMENT OF PERSONS WHO PURSUE OR ARE DESIROUS OF PURSUING AN ECONOMIC ACTIVITY .
18 THE ANSWER TO BE GIVEN TO THE FIRST AND SECOND QUESTIONS MUST THEREFORE BE THAT THE PROVISIONS OF COMMUNITY LAW RELATING TO FREEDOM OF MOVEMENT FOR WORKERS ALSO COVER A NATIONAL OF A MEMBER STATE WHO PURSUES , WITHIN THE TERRITORY OF ANOTHER MEMBER STATE , AN ACTIVITY AS AN EMPLOYED PERSON WHICH YIELDS AN INCOME LOWER THAN THAT WHICH , IN THE LATTER STATE , IS CONSIDERED AS THE MINIMUM REQUIRED FOR SUBSISTENCE , WHETHER THAT PERSON SUPPLEMENTS THE INCOME FROM HIS ACTIVITY AS AN EMPLOYED PERSON WITH OTHER INCOME SO AS TO ARRIVE AT THAT MINIMUM OR IS SATISFIED WITH MEANS OF SUPPORT LOWER THAN THE SAID MINIMUM , PROVIDED THAT HE PURSUES AN ACTIVITY AS AN EMPLOYED PERSON WHICH IS EFFECTIVE AND GENUINE .
THIRD QUESTION
19 THE THIRD QUESTION ESSENTIALLY SEEKS TO ASCERTAIN WHETHER THE RIGHT TO ENTER AND RESIDE IN THE TERRITORY OF A MEMBER STATE MAY BE DENIED TO A WORKER WHOSE MAIN OBJECTIVES , PURSUED BY MEANS OF HIS ENTRY AND RESIDENCE , ARE DIFFERENT FROM THAT OF THE PURSUIT OF AN ACTIVITY AS AN EMPLOYED PERSON AS DEFINED IN THE ANSWER TO THE FIRST AND SECOND QUESTIONS .
20 UNDER ARTICLE 48 ( 3 ) OF THE TREATY THE RIGHT TO MOVE FREELY WITHIN THE TERRITORY OF THE MEMBER STATES IS CONFERRED UPON WORKERS FOR THE ‘ ‘ PURPOSE ‘ ‘ OF ACCEPTING OFFERS OF EMPLOYMENT ACTUALLY MADE . BY VIRTUE OF THE SAME PROVISION WORKERS ENJOY THE RIGHT TO STAY IN ONE OF THE MEMBER STATES ‘ ‘ FOR THE PURPOSE ‘ ‘ OF EMPLOYMENT THERE . MOREOVER , IT IS STATED IN THE PREAMBLE TO REGULATION ( EEC ) NO 1612/68 THAT FREEDOM OF MOVEMENT FOR WORKERS ENTAILS THE RIGHT OF WORKERS TO MOVE FREELY WITHIN THE COMMUNITY ‘ ‘ IN ORDER TO ‘ ‘ PURSUE ACTIVITIES AS EMPLOYED PERSONS , WHILST ARTICLE 2 OF DIRECTIVE 68/360/EEC REQUIRES THE MEMBER STATES TO GRANT WORKERS THE RIGHT TO LEAVE THEIR TERRITORY ‘ ‘ IN ORDER TO ‘ ‘ TAKE UP ACTIVITIES AS EMPLOYED PERSONS OR TO PURSUE THEM IN THE TERRITORY OF ANOTHER MEMBER STATE .
21 HOWEVER , THESE FORMULATIONS MERELY GIVE EXPRESSION TO THE REQUIREMENT , WHICH IS INHERENT IN THE VERY PRINCIPLE OF FREEDOM OF MOVEMENT FOR WORKERS , THAT THE ADVANTAGES WHICH COMMUNITY LAW CONFERS IN THE NAME OF THAT FREEDOM MAY BE RELIED UPON ONLY BY PERSONS WHO ACTUALLY PURSUE OR SERIOUSLY WISH TO PURSUE ACTIVITIES AS EMPLOYED PERSONS . THEY DO NOT , HOWEVER , MEAN THAT THE ENJOYMENT OF THIS FREEDOM MAY BE MADE TO DEPEND UPON THE AIMS PURSUED BY A NATIONAL OF A MEMBER STATE IN APPLYING FOR ENTRY UPON AND RESIDENCE IN THE TERRITORY OF ANOTHER MEMBER STATE , PROVIDED THAT HE THERE PURSUES OR WISHES TO PURSUE AN ACTIVITY WHICH MEETS THE CRITERIA SPECIFIED ABOVE , THAT IS TO SAY , AN EFFECTIVE AND GENUINE ACTIVITY AS AN EMPLOYED PERSON .
22 ONCE THIS CONDITION IS SATISFIED , THE MOTIVES WHICH MAY HAVE PROMPTED THE WORKER TO SEEK EMPLOYMENT IN THE MEMBER STATE CONCERNED ARE OF NO ACCOUNT AND MUST NOT BE TAKEN INTO CONSIDERATION .
23 THE ANSWER TO BE GIVEN TO THE THIRD QUESTION PUT TO THE COURT BY THE RAAD VAN STATE MUST THEREFORE BE THAT THE MOTIVES WHICH MAY HAVE PROMPTED A WORKER OF A MEMBER STATE TO SEEK EMPLOYMENT IN ANOTHER MEMBER STATE ARE OF NO ACCOUNT AS REGARDS HIS RIGHT TO ENTER AND RESIDE IN THE TERRITORY OF THE LATTER STATE PROVIDED THAT HE THERE PURSUES OR WISHES TO PURSUE AN EFFECTIVE AND GENUINE ACTIVITY .
COSTS
THE COSTS INCURRED BY THE DANISH , FRENCH , ITALIAN AND NETHERLANDS GOVERNMENTS AND BY THE COMMISSION , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED , IN THE NATURE OF A STEP IN THE PROCEEDINGS BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
ON THOSE GROUNDS ,
THE COURT ,
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE JUDICIAL DIVISION OF THE RAAD VAN STATE OF THE NETHERLANDS BY INTERLOCUTORY JUDGMENT OF 28 NOVEMBER 1980 , HEREBY RULES :
1 . THE PROVISIONS OF COMMUNITY LAW RELATING TO FREEDOM OF MOVEMENT FOR WORKERS ALSO COVER A NATIONAL OF A MEMBER STATE WHO PURSUES , WITHIN THE TERRITORY OF ANOTHER MEMBER STATE , AN ACTIVITY AS AN EMPLOYED PERSON WHICH YIELDS AN INCOME LOWER THAN THAT WHICH , IN THE LATTER STATE , IS CONSIDERED AS THE MINIMUM REQUIRED FOR SUBSISTENCE , WHETHER THAT PERSON SUPPLEMENTS THE INCOME FROM HIS ACTIVITY AS AN EMPLOYED PERSON WITH OTHER INCOME SO AS TO ARRIVE AT THAT MINIMUM OR IS SATISFIED WITH MEANS OF SUPPORT LOWER THAN THE SAID MINIMUM , PROVIDED THAT HE PURSUES AN ACTIVITY AS AN EMPLOYED PERSON WHICH IS EFFECTIVE AND GENUINE .
2.THE MOTIVES WHICH MAY HAVE PROMPTED A WORKER OF A MEMBER STATE TO SEEK EMPLOYMENT IN ANOTHER MEMBER STATE ARE OF NO ACCOUNT AS REGARDS HIS RIGHT TO ENTER AND RESIDE IN THE TERRITORY OF THE LATTER STATE PROVIDED THAT HE PURSUES OR WISHES TO PURSUE AN EFFECTIVE AND GENUINE ACTIVITY .
R. H. Kempf v Staatssecretaris van Justitie
[1986] EUECJ R-139/85 (3 June 1986)
Cite as: [1986] EUECJ R-139/85
FREEDOM OF MOVEMENT FOR PERSONS – WORKER – CONCEPT – BROAD INTERPRETATION – PURSUIT OF EFFECTIVE AND GENUINE ACTIVITIES AS AN EMPLOYED PERSON – CLAIM FOR FINANCIAL ASSISTANCE PAYABLE OUT OF PUBLIC FUNDS – IRRELEVANT
( EEC TREATY , ART . 48 )
THE TERMS ‘ WORKER ‘ AND ‘ ACTIVITY AS AN EMPLOYED PERSON ‘ DEFINE THE SPHERE OF APPLICATION OF ONE OF THE FUNDAMENTAL FREEDOMS GUARANTEED BY THE TREATY AND FOR THAT REASON MUST BE GIVEN A BROAD INTERPRETATION ; EXCEPTIONS TO AND DEROGATIONS FROM THE PRINCIPLE OF FREEDOM OF MOVEMENT FOR WORKERS , ON THE OTHER HAND , MUST BE INTERPRETED STRICTLY .
ACCORDINGLY , WHERE A NATIONAL OF A MEMBER STATE PURSUES AS AN EMPLOYED PERSON WITHIN THE TERRITORY OF ANOTHER MEMBER STATE ACTIVITIES WHICH MAY IN THEMSELVES BE REGARDED AS EFFECTIVE AND GENUINE WORK , THE FACT THAT HE CLAIMS FINANCIAL ASSISTANCE PAYABLE OUT OF THE PUBLIC FUNDS OF THE LATTER MEMBER STATE IN ORDER TO SUPPLEMENT THE INCOME HE RECEIVES FROM THOSE ACTIVITIES DOES NOT EXCLUDE HIM FROM THE PROVISIONS OF COMMUNITY LAW RELATING TO FREEDOM OF MOVEMENT FOR WORKERS .
IN CASE 139/85
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE RAAD VAN STATE ( STATE COUNCIL ), THE HAGUE , FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN
R . H . KEMPF
AND
STAATSSECRETARIS VAN JUSTITIE ( SECRETARY OF STATE FOR JUSTICE )
ON THE INTERPRETATION OF CERTAIN PROVISIONS OF COMMUNITY LAW RELATING TO FREEDOM OF MOVEMENT FOR WORKERS ,
1 BY AN INTERLOCUTORY JUDGMENT OF 23 APRIL 1985 , WHICH WAS RECEIVED AT THE COURT ON 9 MAY 1985 , THE RAAD VAN STATE OF THE NETHERLANDS REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION ON THE INTERPRETATION OF THE PROVISIONS OF COMMUNITY LAW RELATING TO FREEDOM OF MOVEMENT FOR WORKERS WITHIN THE COMMUNITY .
2 THE PLAINTIFF IN THE MAIN ACTION , MR R . H . KEMPF , A GERMAN NATIONAL , ENTERED THE NETHERLANDS ON 1 SEPTEMBER 1981 AND WORKED THERE AS A PART-TIME MUSIC TEACHER GIVING 12 LESSONS A WEEK FROM 26 OCTOBER 1981 TO 14 JULY 1982 ; AT THE END OF THAT PERIOD THE GROSS WAGES HE WAS RECEIVING FOR THAT WORK AMOUNTED TO HFL 984 PER MONTH . IN THE SAME PERIOD HE APPLIED FOR AND RECEIVED SUPPLEMENTARY BENEFIT UNDER THE WET WERKLOOSHEIDSVOORZIENING ( LAW ON UNEMPLOYMENT BENEFIT ). BENEFITS UNDER THAT LAW , WHICH COME OUT OF PUBLIC FUNDS , ARE PAYABLE TO PERSONS HAVING THE STATUS OF WORKERS .
3 MR KEMPF SUBSEQUENTLY BECAME UNABLE TO WORK AS A RESULT OF SICKNESS AND OBTAINED SOCIAL SECURITY BENEFITS UNDER THE ZIEKTEWET ( LAW ON SICKNESS INSURANCE ). HE ALSO RECEIVED SUPPLEMENTARY BENEFITS UNDER BOTH THE ABOVE-MENTIONED LAW ON UNEMPLOYMENT BENEFIT AND THE ALGEMENE BIJSTANDSWET ( LAW ON SOCIAL ASSISTANCE ). THE LAST-MENTIONED LAW PROVIDES FOR GENERAL SOCIAL ASSISTANCE TO THE NEEDY WHICH IS WHOLLY FINANCED OUT OF PUBLIC FUNDS .
4 ON 30 NOVEMBER 1981 MR KEMPF APPLIED FOR A RESIDENCE PERMIT IN THE NETHERLANDS IN ORDER ‘ TO PURSUE AN ACTIVITY AS AN EMPLOYED PERSON ‘ IN THAT COUNTRY . IT WAS REFUSED BY A DECISION OF THE LOCAL CHIEF OF POLICE DATED 17 AUGUST 1982 . THE PLAINTIFF THEN MADE AN APPLICATION FOR REVIEW TO THE STAATSSECRETARIS VAN JUSTITIE , WHICH WAS REJECTED BY A DECISION OF 9 DECEMBER 1982 ON THE GROUND , INTER ALIA , THAT HE DID NOT QUALIFY AS A FAVOURED EEC CITIZEN WITHIN THE MEANING OF THE NETHERLANDS LEGISLATION ON IMMIGRATION MATTERS BECAUSE HE HAD HAD RECOURSE TO PUBLIC FUNDS IN THE NETHERLANDS AND WAS THEREFORE MANIFESTLY UNABLE TO MEET HIS NEEDS OUT OF THE INCOME RECEIVED FROM HIS EMPLOYMENT .
5 BY AN APPLICATION DATED 10 JANUARY 1983 MR KEMPF APPEALED AGAINST THE DECISION OF THE STAATSSECRETARIS VAN JUSTITIE BEFORE THE JUDICIAL DIVISION OF THE RAAD VAN STATE . THAT IS THE BACKGROUND TO THE ACTION BEFORE THE RAAD VAN STATE , WHICH STAYED THE PROCEEDINGS AND REFERRED THE FOLLOWING QUESTION TO THIS COURT FOR A PRELIMINARY RULING :
‘ WHERE A NATIONAL OF A MEMBER STATE PURSUES WITHIN THE TERRITORY OF ANOTHER MEMBER STATE AN ACTIVITY WHICH MAY IN ITSELF BE REGARDED AS EFFECTIVE AND GENUINE WORK WITHIN THE MEANING OF THE COURT ‘ S JUDGMENT IN LEVIN V STAATSSECRETARIS VAN JUSTITIE , DOES THE FACT THAT HE CLAIMS FINANCIAL ASSISTANCE PAYABLE OUT OF THE PUBLIC FUNDS OF THE LATTER MEMBER STATE IN ORDER TO SUPPLEMENT THE INCOME HE RECEIVES FROM THAT ACTIVITY EXCLUDE HIM FROM THE PROVISIONS OF COMMUNITY LAW RELATING TO FREEDOM OF MOVEMENT FOR WORKERS?
‘
6 MR KEMPF AND THE COMMISSION SUBMIT THAT THAT QUESTION CALLS FOR A NEGATIVE ANSWER . THEY STATE THAT THE SCOPE RATIONE PERSONAE OF THE PROVISIONS RELATING TO FREEDOM OF MOVEMENT FOR WORKERS , WHICH ARE TO BE INTERPRETED BROADLY , IS DETERMINED SOLELY BY THE NATURE OF THE WORK AND DOES NOT DEPEND ON THE INCOME PRODUCED BY IT . CONSEQUENTLY , WORK WHICH IN ITSELF CONSTITUTES EFFECTIVE AND GENUINE WORK DOES NOT CEASE TO DO SO MERELY BECAUSE THE PERSON WHO DOES IT HAS RECOURSE TO BENEFITS DRAWN FROM PUBLIC FUNDS IN ORDER TO SUPPLEMENT HIS WAGES UP TO THE LEVEL OF THE MINIMUM MEANS OF SUBSISTENCE . IN THEIR VIEW THAT CONCLUSION IS CONFIRMED BY RECENT JUDGMENTS OF THE COURT ( JUDGMENTS OF 27 MARCH 1985 IN CASE 249/83 HOECKX V KALMTHOUT AND CASE 122/84 SCRIVNER V CHASTRE ( 1985 ) ECR 973 AND 1027 ) IN WHICH IT WAS HELD THAT A SOCIAL BENEFIT GUARANTEEING A MINIMUM MEANS OF SUBSISTENCE IN A GENERAL MANNER CONSTITUTED A SOCIAL ADVANTAGE WITHIN THE MEANING OF REGULATION NO 1612/68 OF THE COUNCIL OF 15 OCTOBER 1968 AND MUST THEREFORE BE EXTENDED WITHOUT DISCRIMINATION TO WORKERS HAVING THE NATIONALITY OF OTHER MEMBER STATES .
7 THE NETHERLANDS AND DANISH GOVERNMENTS , HOWEVER , TAKE THE VIEW THAT WORK PROVIDING AN INCOME BELOW THE MINIMUM MEANS OF SUBSISTENCE AS DEFINED BY THE HOST MEMBER STATE CANNOT BE REGARDED AS EFFECTIVE AND GENUINE WORK IF THE PERSON WHO DOES IT IS CLAIMING SOCIAL ASSISTANCE DRAWN FROM PUBLIC FUNDS . IN SUCH A CASE THE WORK DOES NOT PROVIDE THE IMMEDIATE MEANS FOR IMPROVING HIS LIVING CONDITIONS BUT IS MERELY ONE OF THE MEANS BY WHICH HE OBTAINS THE GUARANTEED MINIMUM MEANS OF SUBSISTENCE IN THE HOST MEMBER STATE . IT THEREFORE DOES NOT CONSTITUTE AN ECONOMIC ACTIVITY AS DEFINED BY THE TREATY . NEVERTHELESS , THE DANISH GOVERNMENT ADDS , WHETHER A PERSON HAS THE STATUS OF A WORKER FALLS TO BE DETERMINED SOLELY IN REGARD TO THE DATE OF THE REQUEST FOR A RESIDENCE PERMIT , SO THAT A PERSON HAVING THE STATUS OF A WORKER ON THAT DATE KEEPS THAT STATUS EVEN IF HE SUBSEQUENTLY FINDS HIMSELF OUT OF WORK AND AS A RESULT BECOMES DEPENDENT ON FINANCIAL ASSISTANCE DRAWN FROM PUBLIC FUNDS .
8 IT IS CLEAR FROM THE TERMS OF THE QUESTION SUBMITTED TO THE COURT AND THE GROUNDS OF THE JUDGMENT MAKING THE REFERENCE THAT THE RAAD VAN STATE SEEKS IN ESSENCE A CLARIFICATION OF THE CRITERIA LAID DOWN BY THE COURT IN LEVIN ( JUDGMENT OF 23 MARCH 1982 IN CASE 53/81 LEVIN V STAATSSECRETARIS VAN JUSTITIE ( 1982 ) ECR 1035 ) WITH REGARD TO THE CASE WHERE A NATIONAL OF ONE MEMBER STATE WHO PURSUES AN EFFECTIVE AND GENUINE ACTIVITY AS AN EMPLOYED PERSON IN ANOTHER MEMBER STATE SEEKS TO SUPPLEMENT HIS INCOME FROM THAT ACTIVITY , WHICH IS LOWER THAN THE MINIMUM MEANS OF SUBSISTENCE , SO AS TO MAKE IT UP TO THAT LEVEL BY OBTAINING FINANCIAL ASSISTANCE PAYABLE OUT OF THE PUBLIC FUNDS OF THE HOST STATE .
9 ACCORDINGLY IT IS NECESSARY TO CONSIDER THE TERMS OF THAT JUDGMENT , IN WHICH THE COURT RULED :
‘ THE PROVISIONS OF COMMUNITY LAW RELATING TO FREEDOM OF MOVEMENT FOR WORKERS ALSO COVER A NATIONAL OF A MEMBER STATE WHO PURSUES , WITHIN THE TERRITORY OF ANOTHER MEMBER STATE , AN ACTIVITY AS AN EMPLOYED PERSON WHICH YIELDS AN INCOME LOWER THAN THAT WHICH , IN THE LATTER STATE , IS CONSIDERED AS THE MINIMUM REQUIRED FOR SUBSISTENCE , WHETHER THAT PERSON SUPPLEMENTS THE INCOME FROM HIS ACTIVITY AS AN EMPLOYED PERSON WITH OTHER INCOME SO AS TO ARRIVE AT THAT MINIMUM OR IS SATISFIED WITH MEANS OF SUPPORT LOWER THAN THE SAID MINIMUM , PROVIDED THAT HE PURSUES AN ACTIVITY AS AN EMPLOYED PERSON WHICH IS EFFECTIVE AND GENUINE . ‘
10 IN THE MAIN BODY OF THE JUDGMENT , THE COURT FURTHER STATED THAT ‘ WHILST PART-TIME EMPLOYMENT IS NOT EXCLUDED FROM THE FIELD OF APPLICATION OF THE RULES ON FREEDOM OF MOVEMENT FOR WORKERS , THOSE RULES COVER ONLY THE PURSUIT OF EFFECTIVE AND GENUINE ACTIVITIES , TO THE EXCLUSION OF ACTIVITIES ON SUCH A SMALL SCALE AS TO BE REGARDED AS PURELY MARGINAL AND ANCILLARY ‘ .
11 AS REGARDS , FIRST , THE CRITERION OF EFFECTIVE AND GENUINE WORK AS OPPOSED TO MARGINAL AND ANCILLARY ACTIVITIES NOT COVERED BY THE RELEVANT COMMUNITY RULES , THE NETHERLANDS GOVERNMENT EXPRESSED DOUBTS AT THE HEARING AS TO WHETHER THE WORK OF A TEACHER WHO GIVES 12 LESSONS A WEEK MAY BE REGARDED AS CONSTITUTING IN ITSELF EFFECTIVE AND GENUINE WORK WITHIN THE TERMS OF THE JUDGMENT IN LEVIN .
12 THERE IS , HOWEVER , NO NEED TO CONSIDER THAT QUESTION SINCE THE RAAD VAN STATE , IN THE GROUNDS OF THE JUDGMENT MAKING THE REFERENCE , EXPRESSLY FOUND THAT MR KEMPF ‘ S WORK WAS NOT ON SUCH A SMALL SCALE AS TO BE PURELY A MARGINAL AND ANCILLARY ACTIVITY . ACCORDING TO THE DIVISION OF JURISDICTION BETWEEN NATIONAL COURTS AND THE COURT OF JUSTICE IN CONNECTION WITH REFERENCES FOR A PRELIMINARY RULING , IT IS FOR NATIONAL COURTS TO ESTABLISH AND TO EVALUATE THE FACTS OF THE CASE . THE QUESTION SUBMITTED FOR A PRELIMINARY RULING MUST THEREFORE BE EXAMINED IN THE LIGHT OF THE ASSESSMENT MADE BY THE RAAD VAN STATE .
13 THE COURT HAS CONSISTENTLY HELD THAT FREEDOM OF MOVEMENT FOR WORKERS FORMS ONE OF THE FOUNDATIONS OF THE COMMUNITY . THE PROVISIONS LAYING DOWN THAT FUNDAMENTAL FREEDOM AND , MORE PARTICULARLY , THE TERMS ‘ WORKER ‘ AND ‘ ACTIVITY AS AN EMPLOYED PERSON ‘ DEFINING THE SPHERE OF APPLICATION OF THOSE FREEDOMS MUST BE GIVEN A BROAD INTERPRETATION IN THAT REGARD , WHEREAS EXCEPTIONS TO AND DEROGATIONS FROM THE PRINCIPLE OF FREEDOM OF MOVEMENT FOR WORKERS MUST BE INTERPRETED STRICTLY .
14 IT FOLLOWS THAT THE RULES ON THIS TOPIC MUST BE INTERPRETED AS MEANING THAT A PERSON IN EFFECTIVE AND GENUINE PART-TIME EMPLOYMENT CANNOT BE EXCLUDED FROM THEIR SPHERE OF APPLICATION MERELY BECAUSE THE REMUNERATION HE DERIVES FROM IT IS BELOW THE LEVEL OF THE MINIMUM MEANS OF SUBSISTENCE AND HE SEEKS TO SUPPLEMENT IT BY OTHER LAWFUL MEANS OF SUBSISTENCE . IN THAT REGARD IT IS IRRELEVANT WHETHER THOSE SUPPLEMENTARY MEANS OF SUBSISTENCE ARE DERIVED FROM PROPERTY OR FROM THE EMPLOYMENT OF A MEMBER OF HIS FAMILY , AS WAS THE CASE IN LEVIN , OR WHETHER , AS IN THIS INSTANCE , THEY ARE OBTAINED FROM FINANCIAL ASSISTANCE DRAWN FROM THE PUBLIC FUNDS OF THE MEMBER STATE IN WHICH HE RESIDES , PROVIDED THAT THE EFFECTIVE AND GENUINE NATURE OF HIS WORK IS ESTABLISHED .
15 THAT CONCLUSION IS , INDEED , CORROBORATED BY THE FACT THAT , AS THE COURT HELD MOST RECENTLY IN LEVIN , THE TERMS ‘ WORKER ‘ AND ‘ ACTIVITY AS AN EMPLOYED PERSON ‘ FOR THE PURPOSES OF COMMUNITY LAW MAY NOT BE DEFINED BY REFERENCE TO THE NATIONAL LAWS OF THE MEMBER STATES BUT HAVE A MEANING SPECIFIC TO COMMUNITY LAW . THEIR EFFECT WOULD BE JEOPARDIZED IF THE ENJOYMENT OF RIGHTS CONFERRED UNDER THE PRINCIPLE OF FREEDOM OF MOVEMENT FOR WORKERS COULD BE PRECLUDED BY THE FACT THAT THE PERSON CONCERNED HAS HAD RECOURSE TO BENEFITS CHARGEABLE TO PUBLIC FUNDS AND CREATED BY THE DOMESTIC LEGISLATION OF THE HOST STATE .
16 FOR THOSE REASONS , IT MUST BE STATED IN ANSWER TO THE QUESTION SUBMITTED FOR A PRELIMINARY RULING THAT WHERE A NATIONAL OF A MEMBER STATE PURSUES WITHIN THE TERRITORY OF ANOTHER MEMBER STATE BY WAY OF EMPLOYMENT ACTIVITIES WHICH MAY IN THEMSELVES BE REGARDED AS EFFECTIVE AND GENUINE WORK , THE FACT THAT HE CLAIMS FINANCIAL ASSISTANCE PAYABLE OUT OF THE PUBLIC FUNDS OF THE LATTER MEMBER STATE IN ORDER TO SUPPLEMENT THE INCOME HE RECEIVES FROM THOSE ACTIVITIES DOES NOT EXCLUDE HIM FROM THE PROVISIONS OF COMMUNITY LAW RELATING TO FREEDOM OF MOVEMENT FOR WORKERS .
COSTS
17 THE COSTS INCURRED BY THE NETHERLANDS AND DANISH GOVERNMENTS AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE PROCEEDINGS BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
ON THOSE GROUNDS ,
THE COURT ,
IN ANSWER TO THE QUESTION REFERRED TO IT BY THE RAAD VAN STATE OF THE NETHERLANDS BY INTERLOCUTORY JUDGMENT OF 23 APRIL 1985 , HEREBY RULES :
WHERE A NATIONAL OF A MEMBER STATE PURSUES WITHIN THE TERRITORY OF ANOTHER MEMBER STATE BY WAY OF EMPLOYMENT ACTIVITIES WHICH MAY IN THEMSELVES BE REGARDED AS EFFECTIVE AND GENUINE WORK , THE FACT THAT HE CLAIMS FINANCIAL ASSISTANCE PAYABLE OUT OF THE PUBLIC FUNDS OF THE LATTER MEMBER STATE IN ORDER TO SUPPLEMENT THE INCOME HE RECEIVES FROM THOSE ACTIVITIES DOES NOT EXCLUDE HIM FROM THE PROVISIONS OF COMMUNITY LAW RELATING TO FREEDOM OF MOVEMENT FOR WORKERS .
Collins v Secretary of State for Work and Pensions,
[2004] EUECJ C-138/02 (23 March 2004)
[2004] CEC 436, [2004] ECR I-2703, [2004] EUECJ C-138/02, [2004] All ER (EC) 1005, [2004] 3 WLR 1236, [2005] QB 145, [2004] 2 CMLR 8, [2005] ICR 37
Freedom of movement for persons – Article 48 of the EC Treaty (now, after amendment, Article 39 EC) – Concept of ‘worker’ – Social security allowance paid to jobseekers – Residence requirement – Citizenship of the European Union)
In Case C-138/02,
REFERENCE to the Court under Article 234 EC by the Social Security Commissioner (United Kingdom) for a preliminary ruling in the proceedings pending before the Commissioner between
Brian Francis Collins
and
Secretary of State for Work and Pensions,
on the interpretation of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition 1968 (II), p. 475), as amended by Council Regulation (EEC) No 2434/92 of 27 July 1992 (OJ 1992 L 245, p. 1), and of Council Directive 68/360/EEC of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families (OJ, English Special Edition 1968 (II), p. 485),
THE COURT (Full Court),
composed of: V. Skouris, President, P. Jann, C.W.A. Timmermans, C. Gulmann, J.N. Cunha Rodrigues (Rapporteur) and A. Rosas, Presidents of Chambers, A. La Pergola, J.-P. Puissochet, R. Schintgen, N. Colneric and S. von Bahr, Judges,
Advocate General: D. Ruiz-Jarabo Colomer,
Registrar: L. Hewlett, Principal Administrator,
after considering the written observations submitted on behalf of:
– Mr Collins, by R. Drabble QC, instructed by P. Eden, solicitor,
– the United Kingdom Government, by J.E. Collins, acting as Agent, assisted by E. Sharpston QC,
– the German Government, by W.-D. Plessing, acting as Agent,
– the Commission of the European Communities, by N. Yerrell and D. Martin, acting as Agents,
having regard to the Report for the Hearing,
after hearing the oral observations of Mr Collins, represented by R. Drabble, of the United Kingdom Government, represented by R. Caudwell, acting as Agent, and E. Sharpston, and of the Commission, represented by N. Yerrell and D. Martin, at the hearing on 17 June 2003,
after hearing the Opinion of the Advocate General at the sitting on 10 July 2003,
gives the following
Judgment
By ruling of 28 March 2002, received at the Court on 12 April 2002, the Social Security Commissioner referred to the Court for a preliminary ruling under Article 234 EC three questions on the interpretation of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition 1968 (II), p. 475), as amended by Council Regulation (EEC) No 2434/92 of 27 July 1992 (OJ 1992 L 45, p. 1) (‘Regulation No 1612/68’), and of Council Directive 68/360/EEC of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families (OJ, English Special Edition 1968 (II), p. 485).
Those questions were raised in proceedings between Mr Collins and the Secretary of State for Work and Pensions concerning the latter’s refusal to grant Mr Collins the jobseeker’s allowance provided for by legislation of the United Kingdom of Great Britain and Northern Ireland.
Relevant provisions
Community legislation
The first paragraph of Article 6 of the EC Treaty (now, after amendment, the first paragraph of Article 12 EC) provides:
‘Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.’
Article 8 of the EC Treaty (now, after amendment, Article 17 EC) states:
‘1. Citizenship of the Union is hereby established.
Every person holding the nationality of a Member State shall be a citizen of the Union.
2. Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby.’
Article 8a(1) of the EC Treaty (now, after amendment, Article 18(1) EC) provides that every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the EC Treaty and by the measures adopted to give it effect.
As provided by Article 48(2) of the EC Treaty (now, after amendment, Article 39(2) EC), freedom of movement for workers entails the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.
In accordance with Article 48(3) of the Treaty, freedom of movement for workers ‘[entails] the right, subject to limitations justified on grounds of public policy, public security or public health:
(a) to accept offers of employment actually made;
(b) to move freely within the territory of Member States for this purpose;
…’
Article 2 of Regulation No 1612/68 states:
‘Any national of a Member State and any employer pursuing an activity in the territory of a Member State may exchange their applications for and offers of employment, and may conclude and perform contracts of employment in accordance with the provisions in force laid down by law, regulation or administrative action, without any discrimination resulting therefrom.’
Article 5 of Regulation No 1612/68 provides that ‘a national of a Member State who seeks employment in the territory of another Member State shall receive the same assistance there as that afforded by the employment offices in that State to their own nationals seeking employment’.
In accordance with Article 7(2) of Regulation No 1612/68, a worker who is a national of a Member State is to enjoy, in the territory of another Member State, the same social and tax advantages as national workers.
Article 1 of Directive 68/360 provides:
‘Member States shall, acting as provided in this Directive, abolish restrictions on the movement and residence of nationals of the said States and of members of their families to whom Regulation (EEC) No 1612/68 applies.’
Article 4(1) of Directive 68/360 provides that Member States are to grant the right of residence in their territory to the persons referred to in Article 1 thereof who are able to produce the documents listed in Article 4(3).
Under the first indent of Article 4(3) of the directive, those documents are, for a worker:
‘(a) the document with which he entered their territory;
(b) a confirmation of engagement from the employer or a certificate of employment’.
In accordance with Article 8(1) of Directive 68/360, Member States are to recognise, without issuing a residence permit, the right of residence in their territory (a) of workers pursuing an activity as an employed person where the activity is not expected to last for more than three months, (b) of frontier workers and (c) of seasonal workers.
National legislation
Jobseeker’s allowance is a social security benefit provided under the Jobseekers Act 1995 (‘the 1995 Act’), section 1(2)(i) of which requires the claimant to be in Great Britain.
Regulations made under the 1995 Act, namely the Jobseeker’s Allowance Regulations 1996 (‘the 1996 Regulations’) lay down the conditions to be met in order to be eligible for jobseeker’s allowance and the amounts that may be claimed by the various categories of claimant. Paragraph 14(a) of Schedule 5 to the 1996 Regulations prescribes an amount of nil for the category of ‘persons from abroad’ who are without family to support.
Regulation 85(4) of the 1996 Regulations defines ‘person from abroad’ as follows:
‘… a claimant who is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland, but for this purpose, no claimant shall be treated as not habitually resident in the United Kingdom who is –
(a) a worker for the purposes of Council Regulation (EEC) No 1612/68 or (EEC) No 1251/70 or a person with a right to reside in the United Kingdom pursuant to Council Directive No 68/360/EEC or No 73/148/EEC;
…’
The main proceedings and the questions referred for a preliminary ruling
Mr Collins was born in the United States and possesses dual Irish and American nationality. As part of his college studies, he spent one semester in the United Kingdom in 1978. In 1980 and 1981 he returned there for a stay of approximately 10 months, during which he did part-time and casual work in pubs and bars and in sales. He went back to the United States in 1981. He subsequently worked in the United States and in Africa.
Mr Collins returned to the United Kingdom on 31 May 1998 in order to find work there in the social services sector. On 8 June 1998 he claimed jobseeker’s allowance, which was refused by decision of an adjudication officer of 1 July 1998, on the ground that he was not habitually resident in the United Kingdom. Mr Collins appealed to a Social Security Appeal Tribunal, which upheld the refusal, stating that he could not be regarded as habitually resident in the United Kingdom since (i) he had not been resident for an appreciable time and (ii) he was not a worker for the purposes of Regulation No 1612/68, nor did he have a right to reside in the United Kingdom pursuant to Directive 68/360.
Mr Collins then appealed to the Social Security Commissioner, who decided to stay proceedings and refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Is a person in the circumstances of the claimant in the present case a worker for the purposes of Regulation No 1612/68 of the Council of 15 October 1968?
(2) If the answer to question 1 is not in the affirmative, does a person in the circumstances of the claimant in the present case have a right to reside in the United Kingdom pursuant to Directive No 68/360 of the Council of 15 October 1968?
(3) If the answers to both questions 1 and 2 are not in the affirmative, do any provisions or principles of European Community law require the payment of a social security benefit with conditions of entitlement like those for income-based jobseeker’s allowance to a person in the circumstances of the claimant in the present case?’
Question 1
Observations submitted to the Court
Mr Collins contends that, as Community law currently stands, his position in the United Kingdom as a person genuinely seeking work gives him the status of a ‘worker’ for the purposes of Regulation No 1612/68 and brings him within the scope of Article 7(2) of that regulation. At paragraph 32 of its judgment in Case C-85/96 Martínez Sala [1998] ECR I-2691, the Court deliberately laid down the rule that persons seeking work are to be considered to be workers for the purposes of Regulation No 1612/68 if the national court is satisfied that the person concerned was genuinely seeking work at the appropriate time.
The United Kingdom Government, the German Government and the Commission of the European Communities, on the other hand, submit that a person in Mr Collins’ position is not a worker for the purposes of Regulation No 1612/68.
The United Kingdom Government and the Commission argue that Mr Collins cannot claim to be a ‘former’ migrant worker who is now merely seeking a benefit under Article 7(2) of Regulation No 1612/68, because there is no relationship between the work which he did in the course of 1980 and 1981 and the type of work which he says he wished to find in 1998.
In Case 316/85 Lebon [1987] ECR 2811, the Court held that equal treatment with regard to social and tax advantages, which is laid down by Article 7(2) of Regulation No 1612/68, applies only to workers, and that those who move in search of employment qualify for such equal treatment only as regards access to employment in accordance with Article 48 of the Treaty and Articles 2 and 5 of that regulation.
The German Government draws attention to the specific circumstances in Martínez Sala, cited above, which were characterised by very close connections of long duration between the plaintiff and the host Member State, whereas in the main proceedings there is clearly no link between the earlier work carried out by Mr Collins and the work sought by him.
The Court’s answer
In accordance with the Court’s case-law, the concept of ‘worker’, within the meaning of Article 48 of the Treaty and of Regulation No 1612/68, has a specific Community meaning and must not be interpreted narrowly. Any person who pursues activities which are real and genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary, must be regarded as a ‘worker’. The essential feature of an employment relationship is, according to that case-law, that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration (see, in particular, Case 66/85 Lawrie-Blum [1986] ECR 2121, paragraphs 16 and 17, Martínez Sala, paragraph 32, and Case C-337/97 Meeusen [1999] ECR I-3289, paragraph 13).
The Court has also held that migrant workers are guaranteed certain rights linked to the status as a worker even when they are no longer in an employment relationship (Case C-35/97 Commission v France [1998] ECR I-5325, paragraph 41, and Case C-413/01 Ninni-Orasche [2003] ECR I-0000, paragraph 34).
As is apparent from the documents sent to the Court by the Social Security Commissioner, Mr Collins performed casual work in the United Kingdom, in pubs and bars and in sales, during a 10-month stay there in 1981. However, even if such occupational activity satisfies the conditions as set out in paragraph 26 of this judgment for it to be accepted that during that stay the appellant in the main proceedings had the status of a worker, no link can be established between that activity and the search for another job more than 17 years after it came to an end.
In the absence of a sufficiently close connection with the United Kingdom employment market, Mr Collins’ position in 1998 must therefore be compared with that of any national of a Member State looking for his first job in another Member State.
In this connection, it is to be remembered that the Court’s case-law draws a distinction between Member State nationals who have not yet entered into an employment relationship in the host Member State where they are looking for work and those who are already working in that State or who, having worked there but no longer being in an employment relationship, are nevertheless considered to be workers (see Case 39/86 Lair [1988] ECR 3161, paragraphs 32 and 33).
While Member State nationals who move in search for work benefit from the principle of equal treatment only as regards access to employment, those who have already entered the employment market may, on the basis of Article 7(2) of Regulation No 1612/68, claim the same social and tax advantages as national workers (see in particular, Lebon, cited above, paragraph 26, and Case C-278/94 Commission v Belgium [1996] ECR I-4307, paragraphs 39 and 40).
The concept of ‘worker’ is thus not used in Regulation No 1612/68 in a uniform manner. While in Title II of Part I of the regulation this term covers only persons who have already entered the employment market, in other parts of the same regulation the concept of ‘worker’ must be understood in a broader sense.
Accordingly, the answer to the first question must be that a person in the circumstances of the appellant in the main proceedings is not a worker for the purposes of Title II of Part I of Regulation No 1612/68. It is, however, for the national court or tribunal to establish whether the term ‘worker’ as referred to by the national legislation at issue is to be understood in that sense.
Question 2
Observations submitted to the Court
Mr Collins submits that Directive 68/360 grants a right of residence for a period of three months to persons seeking work.
The United Kingdom Government, the German Government and the Commission contend that it is on the basis of Article 48 of the Treaty directly, and not of the provisions of Directive 68/360, which are applicable exclusively to persons who have found work, that Mr Collins would be entitled to go to the United Kingdom to seek work and to stay there as a person looking for work for a reasonable period.
The Court’s answer
In the context of freedom of movement for workers, Article 48 of the Treaty grants nationals of the Member States a right of residence in the territory of other Member States in order to pursue or to seek paid employment (Case C-171/91 Tsiotras [1993] ECR I-2925, paragraph 8).
The right of residence which persons seeking employment derive from Article 48 of the Treaty may be limited in time. In the absence of Community provisions prescribing a period during which Community nationals who are seeking employment may stay in their territory, the Member States are entitled to lay down a reasonable period for this purpose. However, if after expiry of that period, the person concerned provides evidence that he is continuing to seek employment and that he has genuine chances of being engaged, he cannot be required to leave the territory of the host Member State (see Case C-292/89 Antonissen [1991] ECR I-745, paragraph 21, and Case C-344/95 Commission v Belgium [1997] ECR I-1035, paragraph 17).
Directive 68/360 seeks to abolish, within the Community, restrictions concerning the movement and residence of Member State nationals and of members of their families to whom Regulation No 1612/68 applies.
So far as concerns restrictions on movement, first, Article 2(1) of Directive 68/360 requires Member States to grant the right to leave their territory to Community nationals intending to go to another Member State to seek employment there. Second, in accordance with Article 3(1) of the directive, Member States are to allow those nationals to enter their territory simply on production of a valid identity card or passport.
In addition, given that the right of residence is a right conferred directly by the Treaty (see, in particular, Case C-363/89 Roux [1991] ECR I-273, paragraph 9), issue of a residence permit to a national of a Member State, as provided for by Directive 68/360, is to be regarded not as a measure giving rise to rights but as a measure by a Member State serving to prove the individual position of a national of another Member State with regard to provisions of Community law (Case C-459/99 MRAX [2002] ECR I-6591, paragraph 74).
Under Article 4 of Directive 68/360, Member States are to grant the right of residence in their territory only to workers who are able to produce, in addition to the document with which they entered the Member State’s territory, a confirmation of engagement from the employer or a certificate of employment.
Article 8 of the directive sets out an exhaustive list of the circumstances in which certain categories of workers may have their right of residence recognised without issue of a residence permit to them.
It follows that the right of residence in a Member State referred to in Articles 4 and 8 of Directive 68/360 is accorded only to nationals of a Member State who are already in employment in the first Member State. Persons seeking employment are excluded. They can rely solely on the provisions of that directive concerning their movement within the Community.
The answer to the second question must therefore be that a person in the circumstances of the appellant in the main proceedings does not have a right to reside in the United Kingdom solely on the basis of Directive 68/360.
Question 3
Observations submitted to the Court
In Mr Collins’ submission, there is no doubt that he is a national of another Member State who was lawfully in the United Kingdom and that jobseeker’s allowance is within the scope of the Treaty. The result, as the Court held in Case C-184/99 Grzelczyk [2001] ECR I-6193, is that the payment of a non-contributory means-tested benefit to a national of a Member State other than the host Member State cannot be made conditional on the satisfaction of a condition when such a condition is not applied to nationals of the host Member State. Mr Collinsacknowledges that the habitual residence test is applied to United Kingdom nationals as well. However, it is well established that a provision of national law is to be regarded as discriminatory for the purposes of Community law if it is inherently more likely to be satisfied by nationals of the Member State concerned.
The United Kingdom Government and the German Government argue that there is no provision or principle of Community law which requires that a benefit such as the jobseeker’s allowance be paid to a person in the circumstances of Mr Collins.
With regard to the possible existence of indirect discrimination, the United Kingdom Government submits that there are relevant objective justifications for not making income-based jobseeker’s allowance available to persons in the situation of Mr Collins. Unlike the position in Case C-224/98 D’Hoop [2002] ECR I-6191, the eligibility criteria adopted for the allowance at issue here do not go beyond what is necessary to attain the objective pursued. They represent a proportionate and hence permissible method of ensuring that there is a real link between the claimant and the geographic employment market. In the absence of such criteria, persons who have little or no link with the United Kingdom employment market, as in the case of Mr Collins, would then be able to claim that allowance.
According to the Commission, it is not disputed that Mr Collins was genuinely seeking work in the United Kingdom during the two months following his arrival in that Member State and that he was lawfully resident there in his capacity as a person seeking work. As a citizen of the Union lawfully residing in the United Kingdom, he was clearly entitled to the protection conferred by Article 6 of the Treaty against discrimination on grounds of nationality in any situation falling within the material scope of Community law. That is precisely the case with regard to jobseeker’s allowance, which should be considered to be a social advantage within the meaning of Article 7(2) of Regulation No 1612/68.
The Commisson also observes that it is clear that the right to stay in another Member State to seek work there can be limited to a reasonable period and that Mr Collins’ right to rely on Articles 6 and 8 of the Treaty in order to claim the allowance, on the same basis as United Kingdom nationals, is therefore similarly restricted to that period of lawful residence.
None the less, the Commission submits that a requirement of habitual residence may be indirectly discriminatory because it can be more easily met by nationals of the host Member State than by those of other Member States. Whilst such a requirement may be justified on objective grounds necessarily intended to avoid ‘benefit tourism’ and thus the possibility of abuse by work-seekers who are not genuine, the Commission notes that in the case of Mr Collins the genuine nature of the search for work is not in dispute. Indeed, it appears that he has remained continuously employed in the United Kingdom ever since first finding work there shortly after his arrival.
The Court’s answer
By the third question, the Social Security Commissioner asks essentially whether there is a provision or principle of Community law on the basis of which a national of a Member State who is genuinely seeking employment in another Member State may claim there a jobseeker’s allowance such as that provided for by the 1995 Act.
First of all, without there being any need to consider whether a person such as the appellant in the main proceedings falls within the scope ratione personae of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1) (‘Regulation No 1408/71’), it is clear from the order for reference that the person concerned never resided in another Member State before seeking employment in the United Kingdom, so that the aggregation rule contained in Article 10a of Regulation No 1408/71 is inapplicable in the main proceedings.
Under the 1996 Regulations, nationals of other Member States seeking employment who are not workers for the purposes of Regulation No 1612/68 and do not derive a right of residence from Directive 68/360 can claim the allowance only if they are habitually resident in the United Kingdom.
It must therefore be determined whether the principle of equal treatment precludes national legislation which makes entitlement to a jobseeker’s allowance conditional on a residence requirement.
In accordance with the first paragraph of Article 6 of the Treaty, any discrimination on grounds of nationality is prohibited within the scope of application of the Treaty, without prejudice to any special provisions contained therein. Since Article 48(2) of the Treaty is such a special provision, it is appropriate to consider first the 1996 Regulations in the light of that article.
Among the rights which Article 48 of the Treaty confers on nationals of the Member States is the right to move freely within the territory of the other Member States and to stay there for the purposes of seeking employment (Antonissen, cited above, paragraph 13).
Nationals of a Member State seeking employment in another Member State thus fall within the scope of Article 48 of the Treaty and, therefore, enjoy the right laid down in Article 48(2) to equal treatment.
As regards the question whether the right to equal treatment enjoyed by nationals of a Member State seeking employment in another Member State also encompasses benefits of a financial nature such as the benefit at issue in the main proceedings, the Court has held that Member State nationals who move in search of employment qualify for equal treatment only as regards access to employment in accordance with Article 48 of the Treaty and Articles 2 and 5 of Regulation No 1612/68, but not with regard to social and tax advantages within the meaning of Article 7(2) of that regulation (Lebon, paragraph 26, and Case C-278/94 Commission v Belgium, cited above, paragraphs 39 and 40).
Article 2 of Regulation No 1612/68 concerns the exchange of applications for and offers of employment and the conclusion and performance of contracts of employment, while Article 5 of the regulation relates to the assistance afforded by employment offices.
It is true that those articles do not expressly refer to benefits of a financial nature. However, in order to determine the scope of the right to equal treatment for persons seeking employment, this principle should be interpreted in the light of other provisions of Community law, in particular Article 6 of the Treaty.
As the Court has held on a number of occasions, citizens of the Union lawfully resident in the territory of a host Member State can rely on Article 6 of the Treaty in all situations which fall within the scope ratione materiae of Community law. Citizenship of the Union is destined to be the fundamental status of nationals of the Member States, enabling those who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for (see, in particular, Grzelczyk, cited above, paragraphs 31 and 32, and Case C-148/02 Garcia Avello [2003] ECR I-0000, paragraphs 22 and 23).
It is to be noted that the Court has held, in relation to a student who is a citizen of the Union, that entitlement to a non-contributory social benefit, such as the Belgian minimum subsistence allowance (‘minimex’), falls within the scope of the prohibition of discrimination on grounds of nationality and that, therefore, Articles 6 and 8 of the Treaty preclude eligibility for that benefit from being subject to conditions which are liable to constitute discrimination on grounds of nationality (Grzelczyk, paragraph 46).
In view of the establishment of citizenship of the Union and the interpretation in the case-law of the right to equal treatment enjoyed by citizens of the Union, it is no longer possible to exclude from the scope of Article 48(2) of the Treaty – which expresses the fundamental principle of equal treatment, guaranteed by Article 6 of the Treaty – a benefit of a financial nature intended to facilitate access to employment in the labour market of a Member State.
The interpretation of the scope of the principle of equal treatment in relation to access to employment must reflect this development, as compared with the interpretation followed in Lebon and in Case C-278/94 Commission v Belgium.
The 1996 Regulations introduce a difference in treatment according to whether the person involved is habitually resident in the United Kingdom. Since that requirement is capable of being met more easily by the State’s own nationals, the 1996 Regulations place at a disadvantage Member State nationals who have exercised their right of movement in order to seek employment in the territory of another Member State (see, to this effect, Case C-237/94 O’Flynn [1996] ECR I-2617, paragraph 18, and Case C-388/01 Commission v Italy [2003] ECR I-721, paragraphs 13 and 14).
A residence requirement of that kind can be justified only if it is based on objective considerations that are independent of the nationality of the persons concerned and proportionate to the legitimate aim of the national provisions (Case C-274/96 Bickel and Franz [1998] ECR I-7637, paragraph 27).
The Court has already held that it is legitimate for the national legislature to wish to ensure that there is a genuine link between an applicant for an allowance in the nature of a social advantage within the meaning of Article 7(2) of Regulation No 1612/68 and the geographic employment market in question (see, in the context of the grant of tideover allowances to young persons seeking their first job, D’Hoop, cited above, paragraph 38).
The jobseeker’s allowance introduced by the 1995 Act is a social security benefit which replaced unemployment benefit and income support, and requires in particular the claimant to be available for and actively seeking employment and not to have income exceeding the applicable amount or capital exceeding a specified amount.
It may be regarded as legitimate for a Member State to grant such an allowance only after it has been possible to establish that a genuine link exists between the person seeking work and the employment market of that State.
The existence of such a link may be determined, in particular, by establishing that the person concerned has, for a reasonable period, in fact genuinely sought work in the Member State in question.
The United Kingdom is thus able to require a connection between persons who claim entitlement to such an allowance and its employment market.
However, while a residence requirement is, in principle, appropriate for the purpose of ensuring such a connection, if it is to be proportionate it cannot go beyond what is necessary in order to attain that objective. More specifically, its application by the national authorities must rest on clear criteria known in advance and provision must be made for the possibility of a means of redress of a judicial nature. In any event, if compliance with the requirement demands a period of residence, the period must not exceed what is necessary in order for the national authorities to be able to satisfy themselves that the person concerned is genuinely seeking work in the employment market of the host Member State.
The answer to the third question must therefore be that the right to equal treatment laid down in Article 48(2) of the Treaty, read in conjunction with Articles 6 and 8 of the Treaty, does not preclude national legislation which makes entitlement to a jobseeker’s allowance conditional on a residence requirement, in so far as that requirement may be justified on the basis of objective considerations that are independent of the nationality of the persons concerned and proportionate to the legitimate aim of the national provisions.
Costs
The costs incurred by the United Kingdom and German Governments and the Commission, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the Social Security Commissioner, the decision on costs is a matter for the Commissioner.
On those grounds,
THE COURT
in answer to the questions referred to it by the Social Security Commissioner by ruling of 28 March 2002, hereby rules:
1) A person in the circumstances of the appellant in the main proceedings is not a worker for the purposes of Title II of Part I of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community, as amended by Council Regulation (EEC) No 2434/92 of 27 July 1992. It is, however, for the national court or tribunal to establish whether the term ‘worker’ as referred to by the national legislation at issue is to be understood in that sense.
2) A person in the circumstances of the appellant in the main proceedings does not have a right to reside in the United Kingdom solely on the basis of Council Directive 68/360/EEC of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families.
3) The right to equal treatment laid down in Article 48(2) of the EC Treaty (now, after amendment, Article 39(2) EC), read in conjunction with Articles 6 and 8 of the EC Treaty (now, after amendment, Articles 12 EC and 17 EC), does not preclude national legislation which makes entitlement to a jobseeker’s allowance conditional on a residence requirement, in so far as that requirement may be justified on the basis of objective considerations that are independent of the nationality of the persons concerned and proportionate to the legitimate aim of the national provisions.
Skouris
Jann
Timmermans
Gulmann
Cunha Rodrigues
Rosas
La Pergola
Puissochet
Schintgen
Colneric
von Bahr
Delivered in open court in Luxembourg on 23 March 2004.
R. Grass
V. Skouris
Registrar
President
Anita Cristini v Societe nationale des chemins de fer francais.
[1975] EUECJ R-32/75 (30 September 1975)
URL: http://www.bailii.org/eu/cases/EUECJ/1975/R3275.html
Cite as: [1975] EUECJ R-32/75
FREEDOM OF MOVEMENT – MIGRANT WORKER – DEATH – FAMILY – NATIONAL TREATMENT – SOCIAL ADVANTAGES – EXTENT
( REGULATION ( EEC ) NO 1612/68 OF THE COUNCIL, ARTICLE 7 ( 2 ))
ARTICLE 7 ( 2 ) OF REGULATION ( EEC ) NO 1612/68 OF THE COUNCIL ON FREEDOM OF MOVEMENT FOR WORKERS WITHIN THE COMMUNITY MUST BE INTERPRETED AS MEANING THAT IT REFERS TO ALL SOCIAL AND TAX ADVANTAGES, WHETHER OR NOT ATTACHED TO THE CONTRACT OF EMPLOYMENT .
THESE ADVANTAGES THEREFORE ALSO INCLUDE FARES REDUCTION CARDS ISSUED BY A NATIONAL RAILWAY AUTHORITY TO LARGE FAMILIES AND THIS APPLIES EVEN IF THIS ADVANTAGE IS ONLY SOUGHT AFTER THE WORKER’S DEATH, TO THE BENEFIT OF HIS FAMILY REMAINING IN THE SAME MEMBER STATE .
IN CASE 32/75
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE COUR D’APPEL, PARIS, FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN
ANITA FIORINI ( NEE CRISTINI ) WIDOW OF EUGENIO FIORINI, RESIDING AT VENISSIEUX, FRANCE,
AND
SOCIETE NATIONALE DES CHEMINS DE FER FRANCAIS, WHOSE REGISTERED OFFICE IS SITUATED IN PARIS,
ON THE INTERPRETATION OF ARTICLE 7 ( 2 ) OF REGULATION ( EEC ) NO 1612/68 OF THE COUNCIL OF 15 OCTOBER 1968 ON FREEDOM OF MOVEMENT FOR WORKERS WITHIN THE COMMUNITY ( OJ L 257 OF 19 OCTOBER 1968 ( ENGLISH SPECIAL EDITION 1968 ( II ), P . 475 )),
1 BY JUDGMENT OF 14 MARCH 1975 WHICH REACHED THE COURT ON 21 MARCH, THE COUR D’APPEL, PARIS, CALLED UPON THE COURT, PURSUANT TO ARTICLE 177 OF THE EEC TREATY, TO GIVE A RULING ON THE ISSUE WHETHER THE REDUCTION CARD ISSUED BY THE SOCIETE NATIONALE DES CHEMINS DE FER FRANCAIS FOR LARGE FAMILIES CONSTITUTES, FOR THE WORKERS OF THE MEMBER STATES, A ‘SOCIAL ADVANTAGE’ WITHIN THE MEANING OF ARTICLE 7 OF REGULATION ( EEC ) NO 1612/68 OF THE COUNCIL OF THE EUROPEAN COMMUNITIES OF 15 OCTOBER 1968 ON FREEDOM OF MOVEMENT FOR WORKERS WITHIN THE COMMUNITY ( OJ L 257 OF 19 OCTOBER 1968 ).
2 IT EMERGES FROM THE JUDGMENT MAKING THE REFERENCE THAT THE MAIN ACTION IS CONCERNED WITH THE REFUSAL BY THE SNCF OF THE REQUEST FOR SUCH A REDUCTION CARD, SUBMITTED BY AN ITALIAN NATIONAL, RESIDING IN FRANCE, WHOSE HUSBAND, ALSO OF ITALIAN NATIONALITY, WORKED IN FRANCE WHERE HE DIED AS THE RESULT OF AN INDUSTRIAL ACCIDENT, LEAVING HIS WIDOW AND FOUR INFANT CHILDREN .
3 THE REFUSAL OF THE REQUEST, ON THE GROUND OF THE APPELLANT’S NATIONALITY, WAS BASED ON PROVISIONS OF FRENCH LAW WHICH STATE THAT THE REDUCTION CARD FOR LARGE FAMILIES IS IN PRINCIPLE RESERVED SOLELY FOR FRENCH NATIONALS AND THAT IT IS ONLY ISSUED TO FOREIGNERS WHOSE COUNTRY OF ORIGIN HAS ENTERED INTO A RECIPROCAL TREATY WITH FRANCE ON THIS PARTICULAR SUBJECT, WHICH IS NOT THE CASE SO FAR AS ITALY IS CONCERNED .
4 THE FRENCH LAW OF 29 OCTOBER 1921, AS AMENDED BY THE LAW OF 24 DECEMBER 1940 AND THE DECREE OF 3 NOVEMBER 1961, PROVIDES THAT IN FAMILIES OF THREE OR MORE CHILDREN UNDER THE AGE OF EIGHTEEN YEARS THE FATHER, THE MOTHER AND EACH CHILD SHALL, AT THE REQUEST OF THE HEAD OF THE FAMILY, RECEIVE AN IDENTITY CARD ENTITLING THEM TO CERTAIN REDUCTIONS IN THE FARES OF THE SNCF .
5 ARTICLE 20 OF THE CODE FRANCAIS DE LA FAMILLE ET DE L’AIDE SOCIALE ( FRENCH FAMILY AND SOCIAL SECURITY CODE ) ( DECREE OF 24 JANUARY 1956 ) PROVIDES THAT FOR THE PURPOSE OF ASSISTING FAMILIES IN BRINGING UP THEIR CHILDREN, THEY SHALL BE GRANTED CERTAIN ALLOWANCES AND BENEFITS, WHICH ARE LISTED, ALBEIT NOT EXHAUSTIVELY, AND INCLUDE, APART FROM FAMILY BENEFITS PROVIDED FOR BY THE SOCIAL SECURITY LEGISLATION AND TAX REDUCTIONS OR EXEMPTIONS, REDUCTIONS IN THE RAILWAY FARES PRESCRIBED BY THE LAW CONCERNED IN THE PRESENT CASE .
6 ALTHOUGH THE COURT, WHEN GIVING A RULING UNDER ARTICLE 177, HAS NO JURISDICTION TO APPLY THE COMMUNITY RULE TO A SPECIFIC CASE, OR, CONSEQUENTLY, TO PRONOUNCE UPON A PROVISION OF NATIONAL LAW, IT MAY HOWEVER PROVIDE THE NATIONAL COURT WITH THE FACTORS OF INTERPRETATION DEPENDING ON COMMUNITY LAW WHICH MIGHT BE USEFUL TO IT IN EVALUATING THE EFFECTS OF SUCH PROVISION .
7 ARTICLE 7 ( 1 ) OF REGULATION ( EEC ) NO 1612/68 OF THE COUNCIL OF 15 OCTOBER 1968 PROVIDES THAT A WORKER WHO IS A NATIONAL OF A MEMBER STATE MAY NOT, IN THE TERRITORY OF THE OTHER MEMBER STATES, BE TREATED DIFFERENTLY FROM NATIONAL WORKERS BY REASON OF HIS NATIONALITY IN RESPECT OF ANY CONDITIONS OF EMPLOYMENT AND WORK .
8 UNDER PARAGRAPH ( 2 ) OF THAT ARTICLE HE IS TO ENJOY ‘THE SAME SOCIAL AND TAX ADVANTAGES AS NATIONAL WORKERS ‘.
9 UNDER PARAGRAPH ( 3 ) OF THAT ARTICLE HE MUST ALSO, ‘BY VIRTUE OF THE SAME RIGHT AND UNDER THE SAME CONDITIONS AS NATIONAL WORKERS, HAVE ACCESS TO TRAINING IN VOCATIONAL SCHOOLS AND RETAINING CENTRES ‘.
10 THE RESPONDENT IN THE MAIN ACTION HAS ARGUED THAT THE ADVANTAGES THUS PRESCRIBED ARE EXCLUSIVELY THOSE ATTACHING TO THE STATUS OF WORKER SINCE THEY ARE CONNECTED WITH THE CONTRACT OF EMPLOYMENT ITSELF .
11 ALTHOUGH IT IS TRUE THAT CERTAIN PROVISIONS IN THIS ARTICLE REFER TO RELATIONSHIPS DERIVING FROM THE CONTRACT OF EMPLOYMENT, THERE ARE OTHERS, SUCH AS THOSE CONCERNING REINSTATEMENT AND RE-EMPLOYMENT SHOULD A WORKER BECOME UNEMPLOYED, WHICH HAVE NOTHING TO DO WITH SUCH RELATIONSHIPS AND EVEN IMPLY THE TERMINATION OF A PREVIOUS EMPLOYMENT .
12 IN THESE CIRCUMSTANCES THE REFERENCE TO ‘SOCIAL ADVANTAGES’ IN ARTICLE 7 ( 2 ) CANNOT BE INTERPRETED RESTRICTIVELY .
13 IT THEREFORE FOLLOWS THAT, IN VIEW OF THE EQUALITY OF TREATMENT WHICH THE PROVISION SEEKS TO ACHIEVE, THE SUBSTANTIVE AREA OF APPLICATION MUST BE DELINEATED SO AS TO INCLUDE ALL SOCIAL AND TAX ADVANTAGES, WHETHER OR NOT ATTACHED TO THE CONTRACT OF EMPLOYMENT, SUCH AS REDUCTIONS IN FARES FOR LARGE FAMILIES .
14 IT THEN BECOMES NECESSARY TO EXAMINE WHETHER SUCH AN ADVANTAGE MUST BE GRANTED TO THE WIDOW AND CHILDREN AFTER THE DEATH OF THE MIGRANT WORKER WHEN THE NATIONAL LAW PROVIDES THAT, AT THE REQUEST OF THE HEAD OF THE FAMILY, EACH MEMBER OF THE FAMILY SHALL BE ISSUED WITH AN IDENTITY CARD ENTITLING HIM OR HER TO THE REDUCTION .
15 IF THE WIDOW AND INFANT CHILDREN OF A NATIONAL OF THE MEMBER STATE IN QUESTION ARE ENTITLED TO SUCH CARDS PROVIDED THAT THE REQUEST HAD BEEN MADE BY THE FATHER BEFORE HIS DEATH, THE SAME MUST APPLY WHERE THE DECEASED FATHER WAS A MIGRANT WORKER AND A NATIONAL OF ANOTHER MEMBER STATE .
16 IT WOULD BE CONTRARY TO THE PURPOSE AND THE SPIRIT OF THE COMMUNITY RULES ON FREEDOM OF MOVEMENT FOR WORKERS TO DEPRIVE THE SURVIVORS OF SUCH A BENEFIT FOLLOWING THE DEATH OF THE WORKER WHILST GRANTING THE SAME BENEFIT TO THE SURVIVORS OF A NATIONAL .
17 IN THIS RESPECT IT IS IMPORTANT TO NOTE THE PROVISIONS OF REGULATION ( EEC ) NO 1251/70 OF THE COMMISSION ON THE RIGHT OF WORKERS TO REMAIN IN THE TERRITORY OF A MEMBER STATE AFTER HAVING BEEN EMPLOYED IN THAT STATE .
18 ARTICLE 3 ( 1 ) OF THAT REGULATION PROVIDES THAT IF A WORKER HAS ACQUIRED THE RIGHT TO REMAIN IN THE TERRITORY OF A MEMBER STATE, THE MEMBERS OF HIS FAMILY WHO ARE RESIDING WITH HIM SHALL BE ENTITLED TO REMAIN THERE AFTER HIS DEATH, WHILST ARTICLE 7 PROVIDES THAT : ‘THE RIGHT TO EQUALITY OF TREATMENT, ESTABLISHED BY COUNCIL REGULATION ( EEC ) NO 1612/68, SHALL APPLY ALSO TO PERSONS COMING UNDER THE PROVISIONS OF THIS REGULATION ‘.
19 ACCORDINGLY THE ANSWER TO THE QUESTION SHOULD BE THAT ARTICLE 7 ( 2 ) OF REGULATION ( EEC ) NO 1612/68 OF THE COUNCIL MUST BE INTERPRETED AS MEANING THAT THE SOCIAL ADVANTAGES REFERRED TO BY THAT PROVISION INCLUDE FARES REDUCTION CARDS ISSUED BY A NATIONAL RAILWAY AUTHORITY TO LARGE FAMILIES AND THAT THIS APPLIES, EVEN IF THE SAID ADVANTAGE IS ONLY SOUGHT AFTER THE WORKER’S DEATH, TO THE BENEFIT OF HIS FAMILY REMAINING IN THE SAME MEMBER STATE .
20/21 THE COSTS INCURRED BY THE FRENCH GOVERNMENT, THE ITALIAN GOVERNMENT AND THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE, AND AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
THE COURT
IN ANSWER TO THE QUESTION REFERRED TO IT BY THE COUR D’APPEL, PARIS, BY JUDGMENT OF 14 MARCH 1975 HEREBY RULES :
ARTICLE 7 ( 2 ) OF REGULATION ( EEC ) NO 1612/68 OF THE COUNCIL ON FREEDOM OF MOVEMENT FOR WORKERS WITHIN THE COMMUNITY MUST BE INTERPRETED AS MEANING THAT THE SOCIAL ADVANTAGES REFERRED TO BY THAT PROVISION INCLUDE FARES REDUCTION CARDS ISSUED BY A NATIONAL RAILWAY AUTHORITY TO LARGE FAMILIES AND THAT THIS APPLIES, EVEN IF THE SAID ADVANTAGE IS ONLY SOUGHT AFTER THE WORKER’S DEATH, TO THE BENEFIT OF HIS FAMILY REMAINING IN THE SAME MEMBER STATE .
Yvonne van Duyn v Home Office.
[1974] EUECJ R-41/74 (4 December 1974)
URL: http://www.bailii.org/eu/cases/EUECJ/1974/R4174.html
Cite as: Case C-41/74, [1974] ECR 1337, Case R-41/74, [1975] Ch 358, [1975] 2 WLR 760, [1974] EUECJ R-41/74, EU:C:1974:133, [1975] 3 All ER 190, ECLI:EU:C:1974:133
1 . WORKERS – FREEDOM OF MOVEMENT – DIRECT EFFECT
( EEC TREATY, ARTICLE 48 )
2 . ACTS OF AN INSTITUTION – DIRECT EFFECT – DIRECTIVE
( EEC TREATY, ARTICLE 177, ARTICLE 189 )
3 . WORKERS – FREEDOM OF MOVEMENT – RESTRICTIONS – ARTICLE 3 OF DIRECTIVE NO 64/221 OF THE COUNCIL – DIRECT EFFECT
4 . COMMUNITY LAW – FUNDAMENTAL PRINCIPLE – DEROGATION – NATIONAL PUBLIC POLICY – STRICT INTERPRETATION – DISCRETIONARY POWER OF NATIONAL AUTHORITIES
5 . WORKERS – FREEDOM OF MOVEMENT – DEROGATION – THREAT TO NATIONAL PUBLIC POLICY – NATIONAL OF ANOTHER MEMBER STATE – PERSONAL CONDUCT – ASSOCIATION WITH A BODY WHICH IS NOT ILLEGAL – ACTIVITIES OF THAT BODY CONSIDERED TO BE SOCIALLY HARMFUL
( EEC TREATY, ARTICLE 48; COUNCIL DIRECTIVE NO 64/221, ARTICLE 3 ( 1 ))
1 . AS THE LIMITATIONS TO THE PRINCIPLE OF FREEDOM OF MOVEMENT FOR WORKERS WHICH MEMBER STATES MAY INVOKE ON GROUNDS OF PUBLIC POLICY, PUBLIC SECURITY, OR PUBLIC HEALTH ARE SUBJECT TO THE CONTROL OF THE COURTS, THE PROVISO IN PARAGRAPH ( 3 ) DOES NOT PREVENT THE PROVISIONS OF ARTICLE 48 FROM CONFERRING ON INDIVIDUALS RIGHTS WHICH THEY MAY ENFORCE IN THE NATIONAL COURTS AND WHICH THE LATTER MUST PROTECT .
2 . IT WOULD BE INCOMPATIBLE WITH THE BINDING EFFECT ATTRIBUTED TO A DIRECTIVE BY ARTICLE 189 TO EXCLUDE, IN PRINCIPLE, THE POSSIBILITY THAT THE OBLIGATION WHICH IT IMPOSES MAY BE INVOKED BY THOSE CONCERNED . IN PARTICULAR, WHERE THE COMMUNITY AUTHORITIES HAVE, BY DIRECTIVES, IMPOSED ON MEMBER STATES THE OBLIGATION TO PURSUE A PARTICULAR COURSE OF CONDUCT, THE USEFUL EFFECT OF SUCH AN ACT WOULD BE WEAKENED IF INDIVIDUALS WERE PREVENTED FROM RELYING ON IT BEFORE THE NATIONAL COURTS AND IF THE LATTER WERE PREVENTED FROM TAKING IT INTO CONSIDERATION AS AN ELEMENT OF COMMUNITY LAW . ARTICLE 177, WHICH EMPOWERS NATIONAL COURTS TO REFER TO THE COURT QUESTIONS CONCERNING THE VALIDITY AND INTERPRETATION OF ALL ACTS OF THE COMMUNITY INSTITUTIONS, WITHOUT DISTINCTION, IMPLIES FURTHERMORE THAT THESE ACTS MAY BE INVOKED BY INDIVIDUALS IN THE NATIONAL COURTS .
IT IS NECESSARY TO EXAMINE IN EVERY CASE WHETHER THE NATURE, GENERAL SCHEME AND WORDING OF THE PROVISION IN QUESTION ARE CAPABLE OF HAVING DIRECT EFFECTS ON THE RELATIONS BETWEEN MEMBER STATES AND INDIVIDUALS .
3 . ARTICLE 3 ( 1 ) OF COUNCIL DIRECTIVE NO 64/221 OF 25 FEBRUARY 1964 ON THE COORDINATION OF SPECIAL MEASURES CONCERNING THE MOVEMENT AND RESIDENCE OF FOREIGN NATIONALS WHICH ARE JUSTIFIED ON GROUNDS OF PUBLIC POLICY, PUBLIC SECURITY OR PUBLIC HEALTH CONFERS ON INDIVIDUALS RIGHTS WHICH ARE ENFORCEABLE BY THEM IN THE NATIONAL COURTS OF A MEMBER STATE AND WHICH THE LATTER MUST PROTECT .
4 . THE CONCEPT OF PUBLIC POLICY IN THE CONTEXT OF THE COMMUNITY AND WHERE, IN PARTICULAR, IT IS USED AS A JUSTIFICATION FOR DEROGATING FROM A FUNDAMENTAL PRINCIPLE OF COMMUNITY LAW, MUST BE INTERPRETED STRICTLY, SO THAT ITS SCOPE CANNOT BE DETERMINED UNILATERALLY BY EACH MEMBER STATE WITHOUT BEING SUBJECT TO CONTROL BY THE INSTITUTIONS OF THE COMMUNITY .
NEVERTHELESS, THE PARTICULAR CIRCUMSTANCES JUSTIFYING RECOURSE TO THE CONCEPT OF PUBLIC POLICY MAY VARY FROM ONE COUNTRY TO ANOTHER AND FROM ONE PERIOD TO ANOTHER, AND IT IS THEREFORE NECESSARY IN THIS MATTER TO ALLOW THE COMPETENT NATIONAL AUTHORITIES AN AREA OF DISCRETION WITHIN THE LIMITS IMPOSED BY THE TREATY .
5 . ARTICLE 48 OF THE EEC TREATY AND ARTICLE 3 ( 1 ) OF DIRECTIVE NO 64/221 MUST BE INTERPRETED AS MEANING THAT A MEMBER STATE, IMPOSING RESTRICTIONS JUSTIFIED ON GROUNDS OF PUBLIC POLICY, IS ENTITLED TO TAKE INTO ACCOUNT, AS A MATTER OF PERSONAL CONDUCT OF THE INDIVIDUAL CONCERNED, THE FACT THAT THE INDIVIDUAL IS ASSOCIATED WITH SOME BODY OR ORGANIZATION THE ACTIVITIES OF WHICH THE MEMBER STATE CONSIDERS SOCIALLY HARMFUL BUT WHICH ARE NOT UNLAWFUL IN THAT STATE, DESPITE THE FACT THAT NO RESTRICTION IS PLACED UPON NATIONALS OF THE SAID MEMBER STATE WHO WISH TO TAKE SIMILAR EMPLOYMENT WITH THE SAME BODIES OR ORGANIZATIONS .
IN CASE 41/74
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE CHANCERY DIVISION OF THE HIGH COURT OF JUSTICE, ENGLAND, FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN
YVONNE VAN DUYN
AND
HOME OFFICE
ON THE INTERPRETATION OF ARTICLE 48 OF THE EEC TREATY AND ARTICLE 3 OF COUNCIL DIRECTIVE 64/221/EEC OF 25 FEBRUARY 1964 ON THE COORDINATION OF SPECIAL MEASURES CONCERNING THE MOVEMENT AND RESIDENCE OF FOREIGN NATIONALS WHICH ARE JUSTIFIED ON GROUNDS OF PUBLIC POLICY, PUBLIC SECURITY OR PUBLIC HEALTH . ( OJ OF 4 . 4 . 1964, P . 850 ).
1 BY ORDER OF THE VICE-CHANCELLOR OF 1 MARCH 1974, LODGED AT THE COURT ON 13 JUNE, THE CHANCERY DIVISION OF THE HIGH COURT OF JUSTICE OF ENGLAND, REFERRED TO THE COURT, UNDER ARTICLE 177 OF THE EEC TREATY, THREE QUESTIONS RELATING TO THE INTERPRETATION OF CERTAIN PROVISIONS OF COMMUNITY LAW CONCERNING FREEDOM OF MOVEMENT FOR WORKERS .
2 THESE QUESTIONS ARISE OUT OF AN ACTION BROUGHT AGAINST THE HOME OFFICE BY A WOMAN OF DUTCH NATIONALITY WHO WAS REFUSED LEAVE TO ENTER THE UNITED KINGDOM TO TAKE UP EMPLOYMENT AS A SECRETARY WITH THE ” CHURCH OF SCIENTOLOGY “.
3 LEAVE TO ENTER WAS REFUSED IN ACCORDANCE WITH THE POLICY OF THE GOVERNMENT OF THE UNITED KINGDOM IN RELATION TO THE SAID ORGANIZATION, THE ACTIVITIES OF WHICH IT CONSIDERS TO BE SOCIALLY HARMFUL .
FIRST QUESTION
4 BY THE FIRST QUESTION, THE COURT IS ASKED TO SAY WHETHER ARTICLE 48 OF THE EEC TREATY IS DIRECTLY APPLICABLE SO AS TO CONFER ON INDIVIDUALS RIGHTS ENFORCEABLE BY THEM IN THE COURTS OF A MEMBER STATE .
5 IT IS PROVIDED, IN ARTICLE 48 ( 1 ) AND ( 2 ), THAT FREEDOM OF MOVEMENT FOR WORKERS SHALL BE SECURED BY THE END OF THE TRANSITIONAL PERIOD AND THAT SUCH FREEDOM SHALL ENTAIL ” THE ABOLITION OF ANY DISCRIMINATION BASED ON NATIONALITY BETWEEN WORKERS OF MEMBER STATES AS REGARDS EMPLOYMENT, REMUNERATION AND OTHER CONDITIONS OF WORK AND EMPLOYMENT ” .
6 THESE PROVISIONS IMPOSE ON MEMBER STATES A PRECISE OBLIGATION WHICH DOES NOT REQUIRE THE ADOPTION OF ANY FURTHER MEASURE ON THE PART EITHER OF THE COMMUNITY INSTITUTIONS OR OF THE MEMBER STATES AND WHICH LEAVES THEM, IN RELATION TO ITS IMPLEMENTATION, NO DISCRETIONARY POWER .
7 PARAGRAPH 3, WHICH DEFINES THE RIGHTS IMPLIED BY THE PRINCIPLE OF FREEDOM OF MOVEMENT FOR WORKERS, SUBJECTS THEM TO LIMITATIONS JUSTIFIED ON GROUNDS OF PUBLIC POLICY, PUBLIC SECURITY OR PUBLIC HEALTH . THE APPLICATION OF THESE LIMITATIONS IS, HOWEVER, SUBJECT TO JUDICIAL CONTROL, SO THAT A MEMBER STATE’ S RIGHT TO INVOKE THE LIMITATIONS DOES NOT PREVENT THE PROVISIONS OF ARTICLE 48, WHICH ENSHRINE THE PRINCIPLE OF FREEDOM OF MOVEMENT FOR WORKERS, FROM CONFERRING ON INDIVIDUALS RIGHTS WHICH ARE ENFORCEABLE BY THEM AND WHICH THE NATIONAL COURTS MUST PROTECT .
8 THE REPLY TO THE FIRST QUESTION MUST THEREFORE BE IN THE AFFIRMATIVE .
SECOND QUESTION
9 THE SECOND QUESTION ASKS THE COURT TO SAY WHETHER COUNCIL DIRECTIVE NO 64/221 OF 25 FEBRUARY 1964 ON THE CO-ORDINATION OF SPECIAL MEASURES CONCERNING THE MOVEMENT AND RESIDENCE OF FOREIGN NATIONALS WHICH ARE JUSTIFIED ON GROUNDS OF PUBLIC POLICY, PUBLIC SECURITY OR PUBLIC HEALTH IS DIRECTLY APPLICABLE SO AS TO CONFER ON INDIVIDUALS RIGHTS ENFORCEABLE BY THEM IN THE COURTS OF A MEMBER STATE .
10 IT EMERGES FROM THE ORDER MAKING THE REFERENCE THAT THE ONLY PROVISION OF THE DIRECTIVE WHICH IS RELEVANT IS THAT CONTAINED IN ARTICLE 3 ( 1 ) WHICH PROVIDES THAT ” MEASURES TAKEN ON GROUNDS OF PUBLIC POLICY OR PUBLIC SECURITY SHALL BE BASED EXCLUSIVELY ON THE PERSONAL CONDUCT OF THE INDIVIDUAL CONCERNED ” .
11 THE UNITED KINGDOM OBSERVES THAT, SINCE ARTICLE 189 OF THE TREATY DISTINGUISHES BETWEEN THE EFFECTS ASCRIBED TO REGULATIONS, DIRECTIVES AND DECISIONS, IT MUST THEREFORE BE PRESUMED THAT THE COUNCIL, IN ISSUING A DIRECTIVE RATHER THAN MAKING A REGULATION, MUST HAVE INTENDED THAT THE DIRECTIVE SHOULD HAVE AN EFFECT OTHER THAN THAT OF A REGULATION AND ACCORDINGLY THAT THE FORMER SHOULD NOT BE DIRECTLY APPLICABLE .
12 IF, HOWEVER, BY VIRTUE OF THE PROVISIONS OF ARTICLE 189 REGULATIONS ARE DIRECTLY APPLICABLE AND, CONSEQUENTLY, MAY BY THEIR VERY NATURE HAVE DIRECT EFFECTS, IT DOES NOT FOLLOW FROM THIS THAT OTHER CATEGORIES OF ACTS MENTIONED IN THAT ARTICLE CAN NEVER HAVE SIMILAR EFFECTS . IT WOULD BE INCOMPATIBLE WITH THE BINDING EFFECT ATTRIBUTED TO A DIRECTIVE BY ARTICLE 189 TO EXCLUDE, IN PRINCIPLE, THE POSSIBILITY THAT THE OBLIGATION WHICH IT IMPOSES MAY BE INVOKED BY THOSE CONCERNED . IN PARTICULAR, WHERE THE COMMUNITY AUTHORITIES HAVE, BY DIRECTIVE, IMPOSED ON MEMBER STATES THE OBLIGATION TO PURSUE A PARTICULAR COURSE OF CONDUCT, THE USEFUL EFFECT OF SUCH AN ACT WOULD BE WEAKENED IF INDIVIDUALS WERE PREVENTED FROM RELYING ON IT BEFORE THEIR NATIONAL COURTS AND IF THE LATTER WERE PREVENTED FROM TAKING IT INTO CONSIDERATION AS AN ELEMENT OF COMMUNITY LAW . ARTICLE 177, WHICH EMPOWERS NATIONAL COURTS TO REFER TO THE COURT QUESTIONS CONCERNING THE VALIDITY AND INTERPRETATION OF ALL ACTS OF THE COMMUNITY INSTITUTIONS, WITHOUT DISTINCTION, IMPLIES FURTHERMORE THAT THESE ACTS MAY BE INVOKED BY INDIVIDUALS IN THE NATIONAL COURTS . IT IS NECESSARY TO EXAMINE, IN EVERY CASE, WHETHER THE NATURE, GENERAL SCHEME AND WORDING OF THE PROVISION IN QUESTION ARE CAPABLE OF HAVING DIRECT EFFECTS ON THE RELATIONS BETWEEN MEMBER STATES AND INDIVIDUALS .
13 BY PROVIDING THAT MEASURES TAKEN ON GROUNDS OF PUBLIC POLICY SHALL BE BASED EXCLUSIVELY ON THE PERSONAL CONDUCT OF THE INDIVIDUAL CONCERNED, ARTICLE 3 ( 1 ) OF DIRECTIVE NO 64/221 IS INTENDED TO LIMIT THE DISCRETIONARY POWER WHICH NATIONAL LAWS GENERALLY CONFER ON THE AUTHORITIES RESPONSIBLE FOR THE ENTRY AND EXPULSION OF FOREIGN NATIONALS . FIRST, THE PROVISION LAYS DOWN AN OBLIGATION WHICH IS NOT SUBJECT TO ANY EXCEPTION OR CONDITION AND WHICH, BY ITS VERY NATURE, DOES NOT REQUIRE THE INTERVENTION OF ANY ACT ON THE PART EITHER OF THE INSTITUTIONS OF THE COMMUNITY OR OF MEMBER STATES . SECONDLY, BECAUSE MEMBER STATES ARE THEREBY OBLIGED, IN IMPLEMENTING A CLAUSE WHICH DEROGATES FROM ONE OF THE FUNDAMENTAL PRINCIPLES OF THE TREATY IN FAVOUR OF INDIVIDUALS, NOT TO TAKE ACCOUNT OF FACTORS EXTRANEOUS TO PERSONAL CONDUCT, LEGAL CERTAINTY FOR THE PERSONS CONCERNED REQUIRES THAT THEY SHOULD BE ABLE TO RELY ON THIS OBLIGATION EVEN THOUGH IT HAS BEEN LAID DOWN IN A LEGISLATIVE ACT WHICH HAS NO AUTOMATIC DIRECT EFFECT IN ITS ENTIRETY .
14 IF THE MEANING AND EXACT SCOPE OF THE PROVISION RAISE QUESTIONS OF INTERPRETATION, THESE QUESTIONS CAN BE RESOLVED BY THE COURTS, TAKING INTO ACCOUNT ALSO THE PROCEDURE UNDER ARTICLE 177 OF THE TREATY .
15 ACCORDINGLY, IN REPLY TO THE SECOND QUESTION, ARTICLE 3 ( 1 ) OF COUNCIL DIRECTIVE NO 64/221 OF 25 FEBRUARY 1964 CONFERS ON INDIVIDUALS RIGHTS WHICH ARE ENFORCEABLE BY THEM IN THE COURTS OF A MEMBER STATE AND WHICH THE NATIONAL COURTS MUST PROTECT .
THIRD QUESTION
16 BY THE THIRD QUESTION THE COURT IS ASKED TO RULE WHETHER ARTICLE 48 OF THE TREATY AND ARTICLE 3 OF DIRECTIVE NO 64/221 MUST BE INTERPRETED AS MEANING THAT
” A MEMBER STATE, IN THE PERFORMANCE OF ITS DUTY TO BASE A MEASURE TAKEN ON GROUNDS OF PUBLIC POLICY EXCLUSIVELY ON THE PERSONAL CONDUCT OF THE INDIVIDUAL CONCERNED IS ENTITLED TO TAKE INTO ACCOUNT AS MATTERS OF PERSONAL CONDUCT :
( A ) THE FACT THAT THE INDIVIDUAL IS OR HAS BEEN ASSOCIATED WITH SOME BODY OR ORGANIZATION THE ACTIVITIES OF WHICH THE MEMBER STATE CONSIDERS CONTRARY TO THE PUBLIC GOOD BUT WHICH ARE NOT UNLAWFUL IN THAT STATE;
( B ) THE FACT THAT THE INDIVIDUAL INTENDS TO TAKE EMPLOYMENT IN THE MEMBER STATE WITH SUCH A BODY OR ORGANIZATION IT BEING THE CASE THAT NO RESTRICTIONS ARE PLACED UPON NATIONALS OF THE MEMBER STATE WHO WISH TO TAKE SIMILAR EMPLOYMENT WITH SUCH A BODY OR ORGANIZATION . ”
17 IT IS NECESSARY, FIRST, TO CONSIDER WHETHER ASSOCIATION WITH A BODY OR AN ORGANIZATION CAN IN ITSELF CONSTITUTE PERSONAL CONDUCT WITHIN THE MEANING OF ARTICLE 3 OF DIRECTIVE NO 64/221 . ALTHOUGH A PERSON’ S PAST ASSOCIATION CANNOT IN GENERAL, JUSTIFY A DECISION REFUSING HIM THE RIGHT TO MOVE FREELY WITHIN THE COMMUNITY, IT IS NEVERTHELESS THE CASE THAT PRESENT ASSOCIATION, WHICH REFLECTS PARTICIPATION IN THE ACTIVITIES OF THE BODY OR OF THE ORGANIZATION AS WELL AS IDENTIFICATION WITH ITS AIMS AND ITS DESIGNS, MAY BE CONSIDERED A VOLUNTARY ACT OF THE PERSON CONCERNED AND, CONSEQUENTLY, AS PART OF HIS PERSONAL CONDUCT WITHIN THE MEANING OF THE PROVISION CITED .
18 THIS THIRD QUESTION FURTHER RAISES THE PROBLEM OF WHAT IMPORTANCE MUST BE ATTRIBUTED TO THE FACT THAT THE ACTIVITIES OF THE ORGANIZATION IN QUESTION, WHICH ARE CONSIDERED BY THE MEMBER STATE AS CONTRARY TO THE PUBLIC GOOD ARE NOT HOWEVER PROHIBITED BY NATIONAL LAW . IT SHOULD BE EMPHASIZED THAT THE CONCEPT OF PUBLIC POLICY IN THE CONTEXT OF THE COMMUNITY AND WHERE, IN PARTICULAR, IT IS USED AS A JUSTIFICATION FOR DEROGATING FROM THE FUNDAMENTAL PRINCIPLE OF FREEDOM OF MOVEMENT FOR WORKERS, MUST BE INTERPRETED STRICTLY, SO THAT ITS SCOPE CANNOT BE DETERMINED UNILATERALLY BY EACH MEMBER STATE WITHOUT BEING SUBJECT TO CONTROL BY THE INSTITUTIONS OF THE COMMUNITY . NEVERTHELESS, THE PARTICULAR CIRCUMSTANCES JUSTIFYING RECOURSE TO THE CONCEPT OF PUBLIC POLICY MAY VARY FROM ONE COUNTRY TO ANOTHER AND FROM ONE PERIOD TO ANOTHER, AND IT IS THEREFORE NECESSARY IN THIS MATTER TO ALLOW THE COMPETENT NATIONAL AUTHORITIES AN AREA OF DISCRETION WITHIN THE LIMITS IMPOSED BY THE TREATY .
19 IT FOLLOWS FROM THE ABOVE THAT WHERE THE COMPETENT AUTHORITIES OF A MEMBER STATE HAVE CLEARLY DEFINED THEIR STANDPOINT AS REGARDS THE ACTIVITIES OF A PARTICULAR ORGANIZATION AND WHERE, CONSIDERING IT TO BE SOCIALLY HARMFUL, THEY HAVE TAKEN ADMINISTRATIVE MEASURES TO COUNTERACT THESE ACTIVITIES, THE MEMBER STATE CANNOT BE REQUIRED, BEFORE IT CAN RELY ON THE CONCEPT OF PUBLIC POLICY, TO MAKE SUCH ACTIVITIES UNLAWFUL, IF RECOURSE TO SUCH A MEASURE IS NOT THOUGHT APPROPRIATE IN THE CIRCUMSTANCES .
20 THE QUESTION RAISES FINALLY THE PROBLEM OF WHETHER A MEMBER STATE IS ENTITLED, ON GROUNDS OF PUBLIC POLICY, TO PREVENT A NATIONAL OF ANOTHER MEMBER STATE FROM TAKING GAINFUL EMPLOYMENT WITHIN ITS TERRITORY WITH A BODY OR ORGANIZATION, IT BEING THE CASE THAT NO SIMILAR RESTRICTION IS PLACED UPON ITS OWN NATIONALS .
21 IN THIS CONNEXION, THE TREATY, WHILE ENSHRINING THE PRINCIPLE OF FREEDOM OF MOVEMENT FOR WORKERS WITHOUT ANY DISCRIMINATION ON GROUNDS OF NATIONALITY, ADMITS, IN ARTICLE 48 ( 3 ), LIMITATIONS JUSTIFIED ON GROUNDS OF PUBLIC POLICY, PUBLIC SECURITY OR PUBLIC HEALTH TO THE RIGHTS DERIVING FROM THIS PRINCIPLE . UNDER THE TERMS OF THE PROVISION CITED ABOVE, THE RIGHT TO ACCEPT OFFERS OF EMPLOYMENT ACTUALLY MADE, THE RIGHT TO MOVE FREELY WITHIN THE TERRITORY OF MEMBER STATES FOR THIS PURPOSE, AND THE RIGHT TO STAY IN A MEMBER STATE FOR THE PURPOSE OF EMPLOYMENT ARE, AMONG OTHERS ALL SUBJECT TO SUCH LIMITATIONS . CONSEQUENTLY, THE EFFECT OF SUCH LIMITATIONS, WHEN THEY APPLY, IS THAT LEAVE TO ENTER THE TERRITORY OF A MEMBER STATE AND THE RIGHT TO RESIDE THERE MAY BE REFUSED TO A NATIONAL OF ANOTHER MEMBER STATE .
22 FURTHERMORE, IT IS A PRINCIPLE OF INTERNATIONAL LAW, WHICH THE EEC TREATY CANNOT BE ASSUMED TO DISREGARD IN THE RELATIONS BETWEEN MEMBER STATES, THAT A STATE IS PRECLUDED FROM REFUSING ITS OWN NATIONALS THE RIGHT OF ENTRY OR RESIDENCE .
23 IT FOLLOWS THAT A MEMBER STATE, FOR REASONS OF PUBLIC POLICY, CAN, WHERE IT DEEMS, NECESSARY, REFUSE A NATIONAL OF ANOTHER MEMBER STATE THE BENEFIT OF THE PRINCIPLE OF FREEDOM OF MOVEMENT FOR WORKERS IN A CASE WHERE SUCH A NATIONAL PROPOSES TO TAKE UP A PARTICULAR OFFER OF EMPLOYMENT EVEN THOUGH THE MEMBER STATE DOES NOT PLACE A SIMILAR RESTRICTION UPON ITS OWN NATIONALS .
24 ACCORDINGLY, THE REPLY TO THE THIRD QUESTION MUST BE THAT ARTICLE 48 OF THE EEC TREATY AND ARTICLE 3 ( 1 ) OF DIRECTIVE NO 64/221 ARE TO BE INTERPRETED AS MEANING THAT A MEMBER STATE, IN IMPOSING RESTRICTIONS JUSTIFIED ON GROUNDS OF PUBLIC POLICY, IS ENTITLED TO TAKE INTO ACCOUNT, AS A MATTER OF PERSONAL CONDUCT OF THE INDIVIDUAL CONCERNED, THE FACT THAT THE INDIVIDUAL IS ASSOCIATED WITH SOME BODY OR ORGANIZATION THE ACTIVITIES OF WHICH THE MEMBER STATE CONSIDERS SOCIALLY HARMFUL BUT WHICH ARE NOT UNLAWFUL IN THAT STATE, DESPITE THE FACT THAT NO RESTRICTION IS PLACED UPON NATIONALS OF THE SAID MEMBER STATE WHO WISH TO TAKE SIMILAR EMPLOYMENT WITH THESE SAME BODIES OR ORGANIZATIONS .
25 THE COSTS INCURRED BY THE UNITED KINGDOM AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE, AND AS THESE PROCEEDINGS ARE, INSOFAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT, COSTS ARE A MATTER FOR THAT COURT .
ON THOSE GROUNDS,
THE COURT
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE HIGH COURT OF JUSTICE, BY ORDER OF THAT COURT, DATED 1 MARCH 1974, HEREBY RULES :
1 . ARTICLE 48 OF THE EEC TREATY HAS A DIRECT EFFECT IN THE LEGAL ORDERS OF THE MEMBER STATES AND CONFERS ON INDIVIDUALS RIGHTS WHICH THE NATIONAL COURTS MUST PROTECT .
2 . ARTICLE 3 ( 1 ) OF COUNCIL DIRECTIVE NO 64/221 OF 25 FEBRUARY 1964 ON THE COORDINATION OF SPECIAL MEASURES CONCERNING THE MOVEMENT AND RESIDENCE OF FOREIGN NATIONALS WHICH ARE JUSTIFIED ON GROUNDS OF PUBLIC POLICY, PUBLIC SECURITY OR PUBLIC HEALTH CONFERS ON INDIVIDUALS RIGHTS WHICH ARE ENFORCEABLE BY THEM IN THE NATIONAL COURTS OF A MEMBER STATE AND WHICH THE NATIONAL COURTS MUST PROTECT .
3 . ARTICLE 48 OF THE EEC TREATY AND ARTICLE 3 ( 1 ) OF DIRECTIVE NO 64/221 MUST BE INTERPRETED AS MEANING THAT A MEMBER STATE, IN IMPOSING RESTRICTIONS JUSTIFIED ON GROUNDS OF PUBLIC POLICY, IS ENTITLED TO TAKE INTO ACCOUNT AS A MATTER OF PERSONAL CONDUCT OF THE INDIVIDUAL CONCERNED, THE FACT THAT THE INDIVIDUAL IS ASSOCIATED WITH SOME BODY OR ORGANIZATION THE ACTIVITIES OF WHICH THE MEMBER STATE CONSIDERS SOCIALLY HARMFUL BUT WHICH ARE NOT UNLAWFUL IN THAT STATE, DESPITE THE FACT THAT NO RESTRICTION IS PLACED UPON NATIONALS OF THE SAID MEMBER STATE WHO WISH TO TAKE SIMILAR EMPLOYMENT WITH THE SAME BODY OR ORGANIZATION .
Regina v Pierre Bouchereau.
[1977] EUECJ R-30/77 (27 October 1977)
URL: http://www.bailii.org/eu/cases/EUECJ/1977/R3077.html
Cite as: [1977] EUECJ R-30/77, [1977] 2 CMLR 800, ECLI:EU:C:1977:172, (1978) 66 Cr App R 202, [1978] QB 732, [1981] 2 All ER 924, [1978] 2 WLR 251, EU:C:1977:172, [1977] ECR 1999
1 . COMMUNITY LAW – MULTILINGUAL TEXTS – UNIFORM INTERPRETATION – DIVERGENCE BETWEEN THE DIFFERENT LANGUAGE VERSIONS – GENERAL SCHEME AND PURPOSE OF THE RULES IN QUESTION AS A BASIS FOR REFERENCE
2 . FREE MOVEMENT OF PERSONS – ‘ MEASURE ‘ WITHIN THE MEANING OF ARTICLE 3 ( 1 ) AND ( 2 ) OF DIRECTIVE NO 64/221/EEC – CONCEPT – RECOMMENDATION BY A COURT TO THE EXECUTIVE AUTHORITY THAT A NATIONAL OF ANOTHER MEMBER STATE BE DEPORTED – INCLUSION – CONDITIONS
3 . FREE MOVEMENT OF PERSONS – RESTRICTIONS – GROUNDS – PREVIOUS CRIMINAL CONVICTIONS – LIMITATION – PERSONAL CONDUCT CONSTITUTING A PRESENT THREAT TO THE REQUIREMENTS OF PUBLIC POLICY
( COUNCIL DIRECTIVE NO 64/221/EEC , ARTICLE 3 ( 2 ))
4 . FREE MOVEMENT OF PERSONS – RESTRICTIONS – GROUNDS – PUBLIC POLICY – CONCEPT
( EEC TREATY , ARTICLE 48 )
1 . THE DIFFERENT LANGUAGE VERSIONS OF A COMMUNITY TEXT MUST BE GIVEN A UNIFORM INTERPRETATION AND HENCE IN THE CASE OF DIVERGENCE BETWEEN THE VERSIONS THE PROVISION IN QUESTION MUST BE INTERPRETED BY REFERENCE TO THE PURPOSE AND GENERAL SCHEME OF THE RULES OF WHICH IT FORMS A PART .
2 . ANY ACTION AFFECTING THE RIGHT OF PERSONS COMING WITHIN THE FIELD OF APPLICATION OF ARTICLE 48 OF THE TREATY TO ENTER AND RESIDE FREELY IN THE MEMBER STATES UNDER THE SAME CONDITIONS AS THE NATIONALS OF THE HOST STATE CONSTITUTES A ‘ MEASURE ‘ FOR THE PURPOSES OF ARTICLE 3 ( 1 ) AND ( 2 ) OF DIRECTIVE NO 64/221/EEC . THAT CONCEPT INCLUDES THE ACTION OF A COURT WHICH IS REQUIRED BY THE LAW TO RECOMMEND IN CERTAIN CASES THE DEPORTATION OF A NATIONAL OF ANOTHER MEMBER STATE , WHERE SUCH RECOM- MENDATION CONSTITUTES A NECESSARY PREREQUISITE FOR A DECISION TO MAKE A DEPORTATION ORDER .
3 . ARTICLE 3 ( 2 ) OF DIRECTIVE NO 64/221/EEC , ACCORDING TO WHICH PREVIOUS CRIMINAL CONVICTIONS DO NOT IN THEMSELVES CONSTITUTE GROUNDS FOR THE IMPOSITION OF THE RESTRICTIONS ON FREE MOVEMENT AUTHORIZED BY ARTICLE 48 OF THE TREATY ON GROUNDS OF PUBLIC POLICY AND PUBLIC SECURITY , MUST BE INTERPRETED TO MEAN THAT PREVIOUS CRIMINAL CONVICTIONS ARE RELEVANT ONLY IN SO FAR AS THE CIRCUMSTANCES WHICH GAVE RISE TO THEM ARE EVIDENCE OF PERSONAL CONDUCT CONSTITUTING A PRESENT THREAT TO THE REQUIREMENTS OF PUBLIC POLICY .
4 . IN SO FAR AS IT MAY JUSTIFY CERTAIN RESTRICTIONS ON THE FREE MOVEMENT OF PERSONS SUBJECT TO COMMUNITY LAW , RECOURSE BY A NATIONAL AUTHORITY TO THE CONCEPT OF PUBLIC POLICY PRESUPPOSES , IN ANY EVENT , THE EXISTENCE , IN ADDITION TO THE PERTURBATION TO THE SOCIAL ORDER WHICH ANY INFRINGEMENT OF THE LAW INVOLVES , OF A GENUINE AND SUFFICIENTLY SERIOUS THREAT AFFECTING ONE OF THE FUNDAMENTAL INTERESTS OF SOCIETY .
IN CASE 30/77
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE MARLBOROUGH STREET MAGISTRATES ‘ COURT , LONDON , FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN
REGINA
AND
PIERRE BOUCHEREAU
ON THE INTERPRETATION OF ARTICLE 3 OF COUNCIL DIRECTIVE NO 64/221/EEC OF 25 FEBRUARY 1964 ON THE COORDINATION OF SPECIAL MEASURES CONCERNING THE MOVEMENT AND RESIDENCE OF FOREIGN NATIONALS WHICH ARE JUSTIFIED ON GROUNDS OF PUBLIC POLICY , PUBLIC SECURITY OR PUBLIC HEALTH ( OJ , ENGLISH SPECIAL EDITION 1963-1964 , P . 117 ),
1 BY ORDER OF 20 NOVEMBER 1976 , RECEIVED AT THE COURT ON 2 MARCH 1977 , THE MARLBOROUGH STREET MAGISTRATES ‘ COURT , LONDON , REFERRED TO THE COURT OF JUSTICE THREE QUESTIONS CONCERNING THE INTERPRETATION OF ARTICLE 48 OF THE TREATY AND OF CERTAIN PROVISIONS OF COUNCIL DIRECTIVE NO 64/221/EEC OF 25 FEBRUARY 1964 ON THE CO-ORDINATION OF SPECIAL MEASURES CONCERNING THE MOVEMENT AND RESIDENCE OF FOREIGN NATIONALS WHICH ARE JUSTIFIED ON GROUNDS OF PUBLIC POLICY , PUBLIC SECURITY OR PUBLIC HEALTH ( OJ , ENGLISH SPECIAL EDITION 1963-1964 , P . 117 )
2 THE QUESTIONS AROSE WITHIN THE CONTEXT OF PROCEEDINGS AGAINST A FRENCH NATIONAL WHO HAD BEEN EMPLOYED IN THE UNITED KINGDOM SINCE MAY 1975 AND WHO WAS FOUND GUILTY IN JUNE 1976 OF UNLAWFUL POSSESSION OF DRUGS , WHICH IS AN OFFENCE PUNISHABLE UNDER THE MISUSE OF DRUGS ACT 1971 .
3 ON 7 JANUARY 1976 THE DEFENDANT HAD PLEADED GUILTY TO AN IDENTICAL OFFENCE BEFORE ANOTHER COURT AND HAD BEEN CONDITIONALLY DISCHARGED FOR TWELVE MONTHS .
4 THE MARLBOROUGH STREET MAGISTRATES ‘ COURT WAS MINDED TO MAKE A RECOMMENDATION FOR DEPORTATION TO THE SECRETARY OF STATE PURSUANT TO ITS POWERS UNDER SECTION 6 ( 1 ) OF THE IMMIGRATION ACT 1971 AND THE APPROPRIATE NOTICE WAS SERVED ON THE DEFENDANT , WHO MAINTAINED , HOWEVER , THAT ARTICLE 48 OF THE EEC TREATY AND THE PROVISIONS OF DIRECTIVE NO 64/221/EEC PREVENTED SUCH A RECOMMENDATION FROM BEING MADE IN THAT INSTANCE .
5 AS THE NATIONAL COURT CONSIDERED THAT THE ACTION RAISED QUESTIONS CONCERNING THE INTERPRETATION OF COMMUNITY LAW IT REFERRED THE MATTER TO THE COURT OF JUSTICE UNDER ARTICLE 177 OF THE TREATY .
THE FIRST QUESTION
6 THE FIRST QUESTION ASKS ‘ WHETHER A RECOMMENDATION FOR DEPORTATION MADE BY A NATIONAL COURT OF A MEMBER STATE TO THE EXECUTIVE AUTHORITY OF THAT STATE ( SUCH RECOMMENDATION BEING PERSUASIVE BUT NOT BINDING ON THE EXECUTIVE AUTHORITY ) CONSTITUTES A ‘ ‘ MEASURE ‘ ‘ WITHIN THE MEANING OF ARTICLE 3 ( 1 ) AND ( 2 ) OF DIRECTIVE NO 64/221/EEC ‘ .
7 THAT QUESTION SEEKS TO DISCOVER WHETHER A COURT WHICH , UNDER NATIONAL LEGISLATION , HAS JURISDICTION TO RECOMMEND TO THE EXECUTIVE AUTHORITY THE DEPORTATION OF A NATIONAL OF ANOTHER MEMBER STATE , SUCH RECOMMENDATION NOT BEING BINDING ON THAT AUTHORITY , MUST , WHEN IT DOES SO , TAKE INTO ACCOUNT THE LIMITATIONS RESULTING FROM THE TREATY AND FROM DIRECTIVE NO 64/221/EEC ON THE EXERCISE OF THE POWERS WHICH , IN THAT AREA , ARE RESERVED TO THE MEMBER STATES .
8 ACCORDING TO THE OBSERVATIONS SUBMITTED BY THE GOVERNMENT OF THE UNITED KINGDOM IN ACCORDANCE WITH ARTICLE 20 OF THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE EEC , THE QUESTION REFERRED TO THE COURT RAISES TWO SEPARATE PROBLEMS : WHETHER A JUDICIAL DECISION CAN CONSTITUTE A ‘ MEASURE ‘ FOR THE PURPOSES OF THE DIRECTIVE AND , IF THE ANSWER IS IN THE AFFIRMATIVE , WHETHER A MERE ‘ RECOMMENDATION ‘ BY A NATIONAL COURT CAN CONSTITUTE A MEASURE FOR THE PURPOSES OF THAT SAME DIRECTIVE .
( A ) AS REGARDS THE FIRST POINT
9 ARTICLE 2 OF DIRECTIVE NO 64/221/EEC STATES THAT THE DIRECTIVE RELATES TO ALL ‘ MEASURES ‘ ( DISPOSITIONS , VORSCHRIFTEN , PROVVEDIMENTI , BESTEMMELSER , VOORSCHRIFTEN ) CONCERNING ENTRY INTO THE TERRITORY , ISSUE OR RENEWAL OF RESIDENCE PERMITS OR EXPULSION FROM THEIR TERRITORY TAKEN BY MEMBER STATES ON GROUNDS OF PUBLIC POLICY , PUBLIC SECURITY OR PUBLIC HEALTH .
10 UNDER PARAGRAPHS ( 1 ) AND ( 2 ) OF ARTICLE 3 OF THAT DIRECTIVE , ‘ MEASURES ‘ ( MESURES , MASSNAHMEN , PROVVEDIMENTI , FORHOLDSREGLER , MAATREGELEN ) TAKEN ON GROUNDS OF PUBLIC POLICY OR PUBLIC SECURITY SHALL BE BASED EXCLUSIVELY ON THE PERSONAL CONDUCT OF THE INDIVIDUAL CONCERNED AND PREVIOUS CRIMINAL CONVICTIONS SHALL NOT IN THEMSELVES CONSTITUTE GROUNDS FOR THE TAKING OF SUCH MEASURES .
11 ALTHOUGH THE GOVERNMENT OF THE UNITED KINGDOM DECLARES THAT IT ACCEPTS UNRESERVEDLY THAT PARAGRAPHS ( 1 ) AND ( 2 ) OF ARTICLE 3 ARE DIRECTLY APPLICABLE AND CONFER RIGHTS ON NATIONALS OF MEMBER STATES TO WHICH THE NATIONAL COURTS MUST HAVE REGARD , WITH THE RESULT THAT IT IS NOT OPEN TO A COURT OF A MEMBER STATE TO IGNORE THOSE PROVISIONS ON ANY MATTER COMING BEFORE THE COURT TO WHICH THEY ARE RELEVANT , IT SUBMITS THAT A JUDICIAL DECISION OF A NATIONAL COURT CANNOT CONSTITUTE A ‘ MEASURE ‘ WITHIN THE MEANING OF THE SAID ARTICLE 3 .
12 ON THAT POINT THE GOVERNMENT OBSERVES THAT THE FACT THAT THE TERM ‘ MEASURES ‘ IS USED IN THE ENGLISH TEXT IN BOTH ARTICLES 2 AND 3 SHOWS THAT IT IS INTENDED TO HAVE THE SAME MEANING IN EACH CASE AND THAT IT EMERGES FROM THE FIRST RECITAL IN THE PREAMBLE TO THE DIRECTIVE THAT WHEN USED IN ARTICLE 2 THE EXPRESSION ONLY REFERS TO PROVISIONS LAID DOWN BY LAW , REGULATION OR ADMINISTRATIVE ACTION , TO THE EXCLUSION OF ACTIONS OF THE JUDICIARY .
13 A COMPARISON OF THE DIFFERENT LANGUAGE VERSIONS OF THE PROVISIONS IN QUESTION SHOWS THAT WITH THE EXCEPTION OF THE ITALIAN TEXT ALL THE OTHER VERSIONS USE DIFFERENT TERMS IN EACH OF THE TWO ARTICLES , WITH THE RESULT THAT NO LEGAL CONSEQUENCES CAN BE BASED ON THE TERMINOLOGY USED .
14 THE DIFFERENT LANGUAGE VERSIONS OF A COMMUNITY TEXT MUST BE GIVEN A UNIFORM INTERPRETATION AND HENCE IN THE CASE OF DIVERGENCE BETWEEN THE VERSIONS THE PROVISION IN QUESTION MUST BE INTERPRETED BY REFERENCE TO THE PURPOSE AND GENERAL SCHEME OF THE RULES OF WHICH IT FORMS A PART .
15 BY COORDINATING NATIONAL RULES ON THE CONTROL OF ALIENS , TO THE EXTENT TO WHICH THEY CONCERN THE NATIONALS OF OTHER MEMBER STATES , DIRECTIVE NO 64/221/EEC SEEKS TO PROTECT SUCH NATIONALS FROM ANY EXERCISE OF THE POWERS RESULTING FROM THE EXCEPTION RELATING TO LIMITATIONS JUSTIFIED ON GROUNDS OF PUBLIC POLICY , PUBLIC SECURITY OR PUBLIC HEALTH , WHICH MIGHT GO BEYOND THE REQUIREMENTS JUSTIFYING AN EXCEPTION TO THE BASIC PRINCIPLE OF FREE MOVEMENT OF PERSONS .
16 IT IS ESSENTIAL THAT AT THE DIFFERENT STAGES OF THE PROCESS WHICH MAY RESULT IN THE ADOPTION OF A DECISION TO MAKE A DEPORTATION ORDER THAT PROTECTION MAY BE PROVIDED BY THE COURTS WHERE THEY ARE INVOLVED IN THE ADOPTION OF SUCH A DECISION .
17 IT FOLLOWS THAT THE CONCEPT OF ‘ MEASURE ‘ INCLUDES THE ACTION OF A COURT WHICH IS REQUIRED BY THE LAW TO RECOMMEND IN CERTAIN CASES THE DEPORTATION OF A NATIONAL OF ANOTHER MEMBER STATE .
18 WHEN MAKING SUCH A RECOMMENDATION , THEREFORE , SUCH A COURT MUST ENSURE THAT THE DIRECTIVE IS CORRECTLY APPLIED AND MUST TAKE ACCOUNT OF THE LIMITS WHICH IT IMPOSES ON THE ACTION OF THE AUTHORITIES IN THE MEMBER STATES .
19 THAT FINDING IS , MOREOVER , IN LINE WITH THE POINT OF VIEW OF THE GOVERNMENT OF THE UNITED KINGDOM WHICH ‘ IS NOT SUGGESTING THAT IT WOULD BE OPEN TO A COURT OF A MEMBER STATE TO IGNORE THE PROVISIONS OF ARTICLE 3 ( 1 ) AND ( 2 ) ON ANY MATTER COMING BEFORE THE COURT TO WHICH THE ARTICLES ARE RELEVANT ‘ BUT ON THE CONTRARY ACCEPTS ‘ THAT THE PROVISIONS OF THOSE ARTICLES ARE DIRECTLY APPLICABLE AND CONFER RIGHTS ON NATIONALS OF MEMBER STATES TO WHICH THE NATIONAL COURTS MUST HAVE REGARD ‘ .
( B ) AS REGARDS THE SECOND POINT
20 AS REGARDS THE SECOND ASPECT OF THE FIRST QUESTION , THE GOVERNMENT OF THE UNITED KINGDOM SUBMITS THAT A MERE RECOMMENDATION CANNOT CONSTITUTE A ‘ MEASURE ‘ WITHIN THE MEANING OF ARTICLE 3 ( 1 ) AND ( 2 ) OF DIRECTIVE NO 64/221/EEC , AND THAT ONLY THE SUBSEQUENT DECISION OF THE SECRETARY OF STATE CAN AMOUNT TO SUCH A MEASURE .
21 FOR THE PURPOSES OF THE DIRECTIVE , A ‘ MEASURE ‘ IS ANY ACTION WHICH AFFECTS THE RIGHT OF PERSONS COMING WITHIN THE FIELD OF APPLICATION OF ARTICLE 48 TO ENTER AND RESIDE FREELY IN THE MEMBER STATES UNDER THE SAME CONDITIONS AS THE NATIONALS OF THE HOST STATE .
22 WITHIN THE CONTEXT OF THE PROCEDURE LAID DOWN BY SECTION 3 ( 6 ) OF THE IMMIGRATION ACT 1971 , THE RECOMMENDATION REFERRED TO IN THE QUESTION RAISED BY THE NATIONAL COURT CONSTITUTES A NECESSARY STEP IN THE PROCESS OF ARRIVING AT ANY DECISION TO MAKE A DEPORTATION ORDER AND IS A NECESSARY PREREQUISITE FOR SUCH A DECISION .
23 MOREOVER , WITHIN THE CONTEXT OF THAT PROCEDURE , ITS EFFECT IS TO MAKE IT POSSIBLE TO DEPRIVE THE PERSON CONCERNED OF HIS LIBERTY AND IT IS , IN ANY EVENT , ONE FACTOR JUSTIFYING A SUBSEQUENT DECISION BY THE EXECUTIVE AUTHORITY TO MAKE A DEPORTATION ORDER .
24 SUCH A RECOMMENDATION THEREFORE AFFECTS THE RIGHT OF FREE MOVEMENT AND CONSTITUTES A MEASURE WITHIN THE MEANING OF ARTICLE 3 OF THE DIRECTIVE .
THE SECOND QUESTION
25 THE SECOND QUESTION ASKS ‘ WHETHER THE WORDING OF ARTICLE 3 ( 2 ) OF DIRECTIVE NO 64/221/EEC , NAMELY THAT PREVIOUS CRIMINAL CONVICTIONS SHALL NOT ‘ IN THEMSELVES ‘ CONSTITUTE GROUNDS FOR THE TAKING OF MEASURES BASED ON PUBLIC POLICY OR PUBLIC SECURITY MEANS THAT PREVIOUS CRIMINAL CONVICTIONS ARE SOLELY RELEVANT IN SO FAR AS THEY MANIFEST A PRESENT OR FUTURE PROPENSITY TO ACT IN A MANNER CONTRARY TO PUBLIC POLICY OR PUBLIC SECURITY ; ALTERNATIVELY , THE MEANING TO BE ATTACHED TO THE EXPRESSION ‘ IN THEMSELVES ‘ IN ARTICLE 3 ( 2 ) OF DIRECTIVE NO 64/221/EEC ‘ .
26 ACCORDING TO THE TERMS OF THE ORDER REFERRING THE CASE TO THE COURT , THAT QUESTION SEEKS TO DISCOVER WHETHER , AS THE DEFENDANT MAINTAINED BEFORE THE NATIONAL COURT , ‘ PREVIOUS CRIMINAL CONVICTIONS ARE SOLELY RELEVANT IN SO FAR AS THEY MANIFEST A PRESENT OR FUTURE INTENTION TO ACT IN A MANNER CONTRARY TO PUBLIC POLICY OR PUBLIC SECURITY ‘ OR , ON THE OTHER HAND , WHETHER , AS COUNSEL FOR THE PROSECUTION SOUGHT TO ARGUE , ALTHOUGH ‘ THE COURT CANNOT MAKE A RECOMMENDATION FOR DEPORTATION ON GROUNDS OF PUBLIC POLICY BASED ON THE FACT ALONE OF A PREVIOUS CONVICTION ‘ IT ‘ IS ENTITLED TO TAKE INTO ACCOUNT THE PAST CONDUCT OF THE DEFENDANT WHICH RESULTED IN THE PREVIOUS CONVICTION ‘ .
27 THE TERMS OF ARTICLE 3 ( 2 ) OF THE DIRECTIVE , WHICH STATES THAT ‘ PREVIOUS CRIMINAL CONVICTIONS SHALL NOT IN THEMSELVES CONSTITUTE GROUNDS FOR THE TAKING OF SUCH MEASURES ‘ MUST BE UNDERSTOOD AS REQUIRING THE NATIONAL AUTHORITIES TO CARRY OUT A SPECIFIC APPRAISAL FROM THE POINT OF VIEW OF THE INTERESTS INHERENT IN PROTECTING THE REQUIREMENTS OF PUBLIC POLICY , WHICH DOES NOT NECESSARILY COINCIDE WITH THE APPRAISALS WHICH FORMED THE BASIS OF THE CRIMINAL CONVICTION .
28 THE EXISTENCE OF A PREVIOUS CRIMINAL CONVICTION CAN , THEREFORE , ONLY BE TAKEN INTO ACCOUNT IN SO FAR AS THE CIRCUMSTANCES WHICH GAVE RISE TO THAT CONVICTION ARE EVIDENCE OF PERSONAL CONDUCT CONSTITUTING A PRESENT THREAT TO THE REQUIREMENTS OF PUBLIC POLICY .
29 ALTHOUGH , IN GENERAL , A FINDING THAT SUCH A THREAT EXISTS IMPLIES THE EXISTENCE IN THE INDIVIDUAL CONCERNED OF A PROPENSITY TO ACT IN THE SAME WAY IN THE FUTURE , IT IS POSSIBLE THAT PAST CONDUCT ALONE MAY CONSTITUTE SUCH A THREAT TO THE REQUIREMENTS OF PUBLIC POLICY .
30 IT IS FOR THE AUTHORITIES AND , WHERE APPROPRIATE , FOR THE NATIONAL COURTS , TO CONSIDER THAT QUESTION IN EACH INDIVIDUAL CASE IN THE LIGHT OF THE PARTICULAR LEGAL POSITION OF PERSONS SUBJECT TO COMMUNITY LAW AND OF THE FUNDAMENTAL NATURE OF THE PRINCIPLE OF THE FREE MOVEMENT OF PERSONS .
THE THIRD QUESTION
31 THE THIRD QUESTION ASKS WHETHER THE WORDS ‘ PUBLIC POLICY ‘ IN ARTICLE 48 ( 3 ) ARE TO BE INTERPRETED AS INCLUDING REASONS OF STATE EVEN WHERE NO BREACH OF THE PUBLIC PEACE OR ORDER IS THREATENED OR IN A NARROWER SENSE IN WHICH IS INCORPORATED THE CONCEPT OF SOME THREATENED BREACH OF THE PUBLIC PEACE , ORDER OR SECURITY , OR IN SOME OTHER WIDER SENSE .
32 APART FROM THE VARIOUS QUESTIONS OF TERMINOLOGY , THIS QUESTION SEEKS TO OBTAIN A DEFINITION OF THE INTERPRETATION TO BE GIVEN TO THE CONCEPT OF ‘ PUBLIC POLICY ‘ REFERRED TO IN ARTICLE 48 .
33 IN ITS JUDGMENT OF 4 DECEMBER 1974 ( CASE 41/74 , VAN DUYN V HOME OFFICE , ( 1974 ) ECR 1337 , AT P . 1350 ) THE COURT EMPHASIZED THAT THE CONCEPT OF PUBLIC POLICY IN THE CONTEXT OF THE COMMUNITY AND WHERE , IN PARTICULAR , IT IS USED AS A JUSTIFICATION FOR DEROGATING FROM THE FUNDAMENTAL PRINCIPLE OF FREEDOM OF MOVEMENT FOR WORKERS , MUST BE INTERPRETED STRICTLY , SO THAT ITS SCOPE CANNOT BE DETERMINED UNILATERALLY BY EACH MEMBER STATE WITHOUT BEING SUBJECT TO CONTROL BY THE INSTITUTIONS OF THE COMMUNITY .
34 NEVERTHELESS , IT IS STATED IN THE SAME JUDGMENT THAT THE PARTICULAR CIRCUMSTANCES JUSTIFYING RECOURSE TO THE CONCEPT OF PUBLIC POLICY MAY VARY FROM ONE COUNTRY TO ANOTHER AND FROM ONE PERIOD TO ANOTHER AND IT IS THEREFORE NECESSARY IN THIS MATTER TO ALLOW THE COMPETENT NATIONAL AUTHORITIES AN AREA OF DISCRETION WITHIN THE LIMITS IMPOSED BY THE TREATY AND THE PROVISIONS ADOPTED FOR ITS IMPLEMENTATION .
35 IN SO FAR AS IT MAY JUSTIFY CERTAIN RESTRICTIONS ON THE FREE MOVEMENT OF PERSONS SUBJECT TO COMMUNITY LAW , RECOURSE BY A NATIONAL AUTHORITY TO THE CONCEPT OF PUBLIC POLICY PRESUPPOSES , IN ANY EVENT , THE EXISTENCE , IN ADDITION TO THE PERTURBATION OF THE SOCIAL ORDER WHICH ANY INFRINGEMENT OF THE LAW INVOLVES , OF A GENUINE AND SUFFICIENTLY SERIOUS THREAT TO THE REQUIREMENTS OF PUBLIC POLICY AFFECTING ONE OF THE FUNDAMENTAL INTERESTS OF SOCIETY .
COSTS
36 THE COSTS INCURRED BY THE GOVERNMENT OF THE UNITED KINGDOM AND THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE .
37 AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
ON THOSE GROUNDS ,
THE COURT ,
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE MARLBOROUGH STREET MAGISTRATES ‘ COURT BY ORDER OF 20 NOVEMBER 1976 , HEREBY RULES :
( 1 ) ANY ACTION AFFECTING THE RIGHT OF PERSONS COMING WITHIN THE FIELD OF APPLICATION OF ARTICLE 48 OF THE TREATY TO ENTER AND RESIDE FREELY IN THE MEMBER STATES UNDER THE SAME CONDITIONS AS THE NATIONALS OF THE HOST STATE CONSTITUTES A ‘ MEASURE ‘ FOR THE PURPOSES OF ARTICLE 3 ( 1 ) AND ( 2 ) OF DIRECTIVE NO 64/221/EEC . THAT CONCEPT INCLUDES THE ACTION OF A COURT WHICH IS REQUIRED BY THE LAW TO RECOMMEND IN CERTAIN CASES THE DEPORTATION OF A NATIONAL OF ANOTHER MEMBER STATE , WHERE SUCH RECOMMENDATION CONSTITUTES A NECESSARY PREREQUISITE FOR A DECISION TO MAKE A DEPORTATION ORDER .
( 2 ) ARTICLE 3 ( 2 ) OF DIRECTIVE NO 64/221/EEC , ACCORDING TO WHICH PREVIOUS CRIMINAL CONVICTIONS DO NOT IN THEMSELVES CONSTITUTE GROUNDS FOR THE IMPOSITION OF THE RESTRICTIONS ON FREE MOVEMENT AUTHORIZED BY ARTICLE 48 OF THE TREATY ON GROUNDS OF PUBLIC POLICY AND PUBLIC SECURITY , MUST BE INTERPRETED TO MEAN THAT PREVIOUS CRIMINAL CONVICTIONS ARE RELEVANT ONLY IN SO FAR AS THE CIRCUMSTANCES WHICH GAVE RISE TO THEM ARE EVIDENCE OF PERSONAL CONDUCT CONSTITUTING A PRESENT THREAT TO THE REQUIREMENTS OF PUBLIC POLICY .
( 3 ) IN SO FAR AS IT MAY JUSTIFY CERTAIN RESTRICTIONS ON THE FREE MOVEMENT OF PERSONS SUBJECT TO COMMUNITY LAW , RECOURSE BY A NATIONAL AUTHORITY TO THE CONCEPT OF PUBLIC POLICY PRESUPPOSES , IN ANY EVENT , THE EXISTENCE , IN ADDITION TO THE PERTURBATION TO THE SOCIAL ORDER WHICH ANY INFRINGEMENT OF THE LAW INVOLVES , OF A GENUINE AND SUFFICIENTLY SERIOUS THREAT AFFECTING ONE OF THE FUNDAMENTAL INTERESTS OF SOCIETY .
Donatella Calfa v Greece
[1999] EUECJ C-348/96 (19 January 1999)
URL: http://www.bailii.org/eu/cases/EUECJ/1999/C34896.html
Cite as: [1999] ECR I-11, [1999] EUECJ C-348/96
JUDGMENT OF THE COURT
19 January 1999 (1)
(Public policy — Tourist from another Member State — Conviction for drug use — Exclusion for life from a Member State’s territory)
In Case C-348/96,
REFERENCE to the Court under Article 177 of the EC Treaty by the Arios Pagos (Greece) for a preliminary ruling in the criminal proceedings before that court against
Donatella Calfa
on the interpretation of Articles 7, 8(1) and (2), 8a(1), 48, 52 and 59 of the EC Treaty and relevant Community directives relating to freedom of movement for persons and freedom to provide services,
THE COURT,
composed of: G.C. Rodríguez Iglesias, President, P.J.G. Kapteyn and P. Jann (Presidents of Chambers), C. Gulmann, J.L. Murray, D.A.O. Edward, H. Ragnemalm (Rapporteur), L. Sevón, M. Wathelet, R. Schintgen and K.M. Ioannou, Judges,
Advocate General: A. La Pergola,
Registrar: H. von Holstein, Deputy Registrar,
after considering the written observations submitted on behalf of:
— Ms Calfa, by Dimosthenis Skandalis, of the Athens Bar,
— the French Government, by Catherine de Salins, Head of Subdirectorate in the Legal Directorate of the Ministry of Foreign Affairs, and Claude Chavance, Secretary of Foreign Affairs in the same directorate, acting as Agents,
— the Netherlands Government, by Adriaan Bos, Legal Adviser, Ministry of Foreign Affairs, acting as Agent,
— the United Kingdom Government, by Stephanie Ridley, of the Treasury Solicitor’s Department, acting as Agent, assisted by Stephen Richards and Mark Shaw, Barristers,
— the Commission of the European Communities, by Maria Patakia, of its Legal Service, acting as Agent,
having regard to the Report for the Hearing,
after hearing the oral observations of the Greek Government, represented by Ioanna Galani-Maragkoudaki, Special Deputy Legal Adviser to the Special Department for Community Legal Matters of the Ministry of Foreign Affairs, and Stamatina Vodina, Special Academic Assistant in the same Department, acting as Agents; of the French Government, represented by Claude Chavance; of the Netherlands Government, represented by Marc Fierstra, Deputy Legal Adviser to the Ministry of Foreign Affairs, acting as Agent; of the United Kingdom Government, represented by Philip Sales, Barrister; and of the Commission, represented by Maria Patakia, at the hearing on 13 January 1998,
after hearing the Opinion of the Advocate General at the sitting on 17 February 1998,
gives the following
Judgment
1.
By judgment of 27 September 1996, received at the Court on 21 October 1996, the Arios Pagos (Supreme Court of Cassation) referred to the Court for a preliminary
ruling under Article 177 of the EC Treaty two questions on the interpretation of Articles 7, 8(1) and (2), 8a(1), 48, 52 and 59 of the EC Treaty and relevant Community directives relating to freedom of movement for persons and freedom to provide services, in order to assess the compatibility with those provisions of a national law providing for the expulsion for life from the national territory of nationals from other Member States found guilty on that territory of certain offences under the law on drugs.
2.
Those questions have been raised in criminal proceedings brought against Ms Calfa, who has been found guilty of an offence under the law on drugs and sentenced to three months’ imprisonment and, by way of an additional penalty, expelled for life from Greek territory.
The Community legislation
3.
Article 1(1) of Council Directive 64/221/EEC of 25 February 1964 on the co-ordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health (OJ, English Special Edition 1963-1964, p. 117) provides:
‘The provisions of this Directive shall apply to any national of a Member State who resides in or travels to another Member State of the Community, either in order to pursue an activity as an employed or self-employed person, or as a recipient of services.‘
4.
Article 3 of the same directive states:
‘1. Measures taken on grounds of public policy or of public security shall be based exclusively on the personal conduct of the individual concerned.
2. Previous criminal convictions shall not in themselves constitute grounds for the taking of such measures.
…‘.
The national legislation
5.
Under Article 12(1) of Law No 1729/1987 on drugs, as amended by Article 14 of Law No 2161/1993, it is an offence punishable by imprisonment for a person to obtain or to possess, in any way whatever, for personal use, drugs in quantities which are shown to be intended exclusively to serve personal needs, or for a person to make use of them. It is an offence punishable by the same penalty to cultivate cannabis in quantities such as to indicate that they are intended solely for personal use.
6.
Article 17(1) of Law No 1729/1987, entitled ‘Restrictions on residence‘, provides that where a person is sentenced to at least five years’ imprisonment for an offence under that Law, the court may, if it considers that the residence of the convicted person in certain places would be injurious, either to him or to the social environment, make an order prohibiting the person from residing in those places for a period of between one and five years.
7.
Under Article 17(2) of the same Law, foreign nationals, whether or not of the age of majority, who are convicted of an offence under that Law, are to be expelled for life unless compelling reasons, in particular family reasons, justify their continued residence in the country, in which case the provisions of paragraph 1 of that article apply to them. The enforcement and suspension of expulsion orders are governed by Article 74 of the Greek Penal Code.
8.
Under Article 74 of that code, foreign nationals who have been expelled may return to the country only after a period of three years following their expulsion and provided that the Minister of Justice has authorised their return.
9.
It results from the aforementioned provisions, read in conjunction, that where a foreign national is convicted of a breach of the law on drugs, and in the absence of compelling reasons, in particular family reasons, justifying his continued residence in the country, the court which passed sentence is under an obligation to order his expulsion for life, so that he will be able to return to the country only after a period of three years and provided that the Minister of Justice in his discretion gives his approval.
10.
Greek nationals, who cannot be subject to an expulsion order, may, on the other hand, be ordered not to reside in certain parts of the territory, in cases where they have been sentenced, under Law No 1729/1987, to imprisonment of five years or more, in particular in cases of drug dealing. However, that prohibition is discretionary and may not be imposed for a period exceeding five years.
The facts of the main proceedings
11.
Ms Calfa, an Italian national, was charged with possession and use of prohibited drugs while staying as a tourist in Crete. The Plimeliodikio (Criminal Court of First Instance) at Heraklion found her guilty of an offence under the law on drugs, sentenced her to three months’ imprisonment and ordered her to be expelled for life from Greek territory.
12.
On 25 September 1995, Ms Calfa appealed to the Arios Pagos against the decision of the Plimeliodikio at Heraklion, exclusively on the point that the Heraklion court had ordered her to be expelled for life from Greece. She claimed inter alia that the provisions relating to European citizenship, more particularly Articles 8 and 8a of the Treaty, and the provisions relating to freedom to provide services in Article 59 of the Treaty did not allow a Member State to adopt a measure expelling a
national of another Member State for life if a comparable measure could not be taken against a Greek citizen.
The questions referred for a preliminary ruling
13.
Considering that the case before it raised a question of the compatibility of the relevant provisions of national legislation with Community law, the Arios Pagos decided to suspend proceedings and to refer the following two questions to the Court for a preliminary ruling:
‘(1) Is a provision of national law compatible with the provisions of Community law referred to in the grounds of the order for reference and, in particular, with the provisions of Articles 8(1) and (2), 8a(1), 48, 52 and 59 of the EC Treaty, the provisions of the relevant directives also referred to in the grounds thereof, or with other relevant provisions of Community law concerning freedom of movement for persons and services, and with the Community law principle of equal treatment enshrined in Article 7 of the EC Treaty, where such provision of national law requires the national court, unless there are compelling reasons, in particular family reasons, for not doing so, to order the expulsion for life of a national of another Member State for reasons of public policy and public security, solely on the ground that that national of the other Member State, whilst lawfully staying in the host state in order to receive tourist services, committed the offences of obtaining drugs for his own personal use and the use of drugs, and where such expulsion entails for the offender a legal bar on his returning to the country — unless authorised after a three-year period by the Minister for Justice in his discretion — in order to pursue the activities provided for by the abovementioned provisions of Community law, and where in the case of such offences being committed by a national of the host state the same punishment of imprisonment is imposed, though not any other analogous penalty, such as a residence restriction, which is imposed on a national of the host state only if a term of imprisonment for a more serious offence is imposed, such as for drug dealing, and is purely discretionary?
(2) Should expulsion by the host country under such a provision of national law (as described at 1 above) of the national of another Member State be deemed compatible with the abovementioned provisions of Community law where, in connection with expulsion, the court so ordering is left with no discretion, other than that relating to the compelling reasons, in particular family reasons, in determining whether the offender’s continued residence in the host country might be justified, is such a measure to be regarded as infringing the Community principle of proportionality, that is to say as being disproportionate to the seriousness of the offences (described above at 1) committed by that person, regard being had to the fact that under national law they are tried as minor offences and are punishable as stated in the
grounds of the order for reference, or to the fact that the expulsion ordered by the national court is for life, subject to authorisation by the Minister for Justice in his discretion for the offender to return after a three-year period to the host country from which he was expelled?‘
14.
The national court is asking essentially whether Articles 8(1) and (2), 8a(1), 48, 52 and 59 of the Treaty and Directive 64/221 preclude legislation which, with certain exceptions, in particular where there are family reasons, requires a Member State’s courts to order the expulsion for life from its territory of nationals of other Member States found guilty on that territory of the offences of obtaining and being in possession of drugs for their own personal use.
15.
It is appropriate, first, to examine this question in the light of the Community rules relating to the freedom to provide services.
16.
It should be remembered at the outset that the principle of freedom to provide services established in Article 59 of the Treaty, which is one of its fundamental principles, includes the freedom for the recipients of services to go to another Member State in order to receive a service there, without being obstructed by restrictions, and that tourists must be regarded as recipients of services (see Case 186/87 Cowan v Trésor Public [1989] ECR 195, paragraph 15).
17.
Although in principle criminal legislation is a matter for which the Member States are responsible, the Court has consistently held that Community law sets certain limits to their power, and such legislation may not restrict the fundamental freedoms guaranteed by Community law (Cowan, paragraph 19).
18.
In the present case, the penalty of expulsion for life from the territory, which is applicable to the nationals of other Member States in the event of conviction for obtaining and being in possession of drugs for their own use, clearly constitutes an obstacle to the freedom to provide services recognised in Article 59 of the Treaty, since it is the very negation of that freedom. This would also be true for the other fundamental freedoms laid down in Articles 48 and 52 of the Treaty and referred to by the national court.
19.
It is none the less necessary to consider whether such a penalty could be justified by the public policy exception provided for in inter alia Article 56 of the Treaty, which is relied upon by the Member State in question.
20.
Article 56 permits Member States to adopt, with respect to nationals of other Member States, and in particular on the grounds of public policy, measures which they cannot apply to their own nationals, inasmuch as they have no authority to expel the latter from the territory or to deny them access thereto (see Case 41/74Van Duyn v Home Office [1974] ECR 1337, paragraphs 22 and 23, Joined Cases 115/81 and 116/81 Adoui and Cornuaille v Belgium [1982] ECR 1665, paragraph 7,
and Joined Cases C-65/95 and C-111/95 Shingara and Radiom [1997] ECR I-3343, paragraph 28).
21.
Under the Court’s case-law, the concept of public policy may be relied upon in the event of a genuine and sufficiently serious threat to the requirements of public policy affecting one of the fundamental interests of society (see Case 30/77 Bouchereau [1977] ECR 1999, paragraph 35).
22.
In this respect, it must be accepted that a Member State may consider that the use of drugs constitutes a danger for society such as to justify special measures against foreign nationals who contravene its laws on drugs, in order to maintain public order.
23.
However, as the Court has repeatedly stated, the public policy exception, like all derogations from a fundamental principle of the Treaty, must be interpreted restrictively.
24.
In that regard, Directive 64/221, Article 1(1) of which provides that the directive is to apply to inter alia any national of a Member State who travels to another Member State as a recipient of services, sets certain limits on the right of Member States to expel foreign nationals on the grounds of public policy. Article 3 of that directive states that measures taken on grounds of public policy or of public security that have the effect of restricting the residence of a national of another Member State must be based exclusively on the personal conduct of the individual concerned. In addition, previous criminal convictions cannot in themselves constitute grounds for the taking of such measures. It follows that the existence of a previous criminal conviction can, therefore, only be taken into account in so far as the circumstances which gave rise to that conviction are evidence of personal conduct constituting a present threat to the requirements of public policy (Bouchereau, paragraph 28).
25.
It follows that an expulsion order could be made against a Community national such as Ms Calfa only if, besides her having committed an offence under drugs laws, her personal conduct created a genuine and sufficiently serious threat affecting one of the fundamental interests of society.
26.
In the present case, the legislation at issue in the main proceedings requires nationals of other Member States found guilty, on the national territory in which that legislation applies, of an offence under the drugs laws, to be expelled for life from that territory, unless compelling reasons, in particular family reasons, justify their continued residence in the country. The penalty can be revoked only by a decision taken at the discretion of the Minister for Justice after a period of three years.
27.
Therefore, expulsion for life automatically follows a criminal conviction, without any account being taken of the personal conduct of the offender or of the danger which that person represents for the requirements of public policy.
28.
It follows that the conditions for the application of the public policy exception provided for in Directive 64/221, as interpreted by the Court of Justice, are not fulfilled and that the public policy exception cannot be successfully relied upon to justify a restriction on the freedom to provide services, such as that imposed by the legislation at issue in the main proceedings.
29.
In view of the foregoing considerations, the answer to be given to the national court’s questions must be that Articles 48, 52 and 59 of the Treaty and Article 3 of Directive 64/221 preclude legislation which, with certain exceptions, in particular where there are family reasons, requires a Member State’s courts to order expulsion for life from its territory of nationals of other Member States found guilty on that territory of the offences of obtaining and being in possession of drugs for their own personal use.
30.
In those circumstances, it is no longer necessary for the Court to consider the question of the compatibility of legislation such as that applicable in the main proceedings with Articles 8 and 8a of the Treaty.
Costs
31.
The costs incurred by the Greek, French, Netherlands and United Kingdom Governments and by the Commission, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.
On those grounds,
THE COURT,
in answer to the questions referred to it by the Arios Pagos by judgment of 27 September 1996, hereby rules:
Articles 48, 52 and 59 of the EC Treaty and Article 3 of Council Directive 64/221/EEC of 25 February 1964 on the co-ordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health preclude legislation which, with certain exceptions, in particular where there are family reasons, requires a Member State’s courts to order expulsion for life from its territory of
nationals of other Member States found guilty on that territory of the offences of obtaining and being in possession of drugs for their own personal use.
Rodríguez Iglesias
Kapteyn
Jann
Gulmann Murray
Edward
Ragnemalm
Sevón
Wathelet
Schintgen
Ioannou
Delivered in open court in Luxembourg on 19 January 1999.
R. Grass
G.C. Rodríguez Iglesias
Registrar
Rezguia Adoui v Belgian State and City of Liege; Dominique Cornuaille v Belgian State
. [1982] EUECJ R-116/81 (18 May 1982)
URL: http://www.bailii.org/eu/cases/EUECJ/1982/R11681.html
Cite as: [1982] 3 CMLR 631, [1982] EUECJ R-116/81, [1982] ECR 1665
1 . FREE MOVEMENT OF PERSONS – DEROGATIONS – GROUNDS OF PUBLIC POLICY – CONCEPT – SUFFICIENTLY SERIOUS MISCONDUCT – CRITERIA
( EEC TREATY , ART . 48 ( 3 ) AND ART . 56 ( 1 ))
2 . FREE MOVEMENT OF PERSONS – DEROGATIONS – GROUNDS OF PUBLIC POLICY – MEASURES NOT JUSTIFIED BY THE INDIVIDUAL CASE – NOT PERMISSIBLE
( COUNCIL DIRECTIVE NO 64/221/EEC , ART . 3 ( 1 ))
3 . FREE MOVEMENT OF PERSONS – DEROGATIONS – DECISIONS RELATING TO THE CONTROL OF ALIENS – PERSONS IN RESPECT OF WHOM AN EXPULSION ORDER HAS BEEN VALIDLY ADOPTED – FRESH APPLICATION FOR A RESIDENCE PERMIT – HOST STATE ‘ S OBLIGATION TO EXAMINE SUCH AN APPLICATION – RIGHT OF ACCESS OF THE PERSON CONCERNED TO THE TERRITORY OF THE MEMBER STATE DURING THE EXAMINATION OF THE APPLICATION – NO SUCH RIGHT
( EEC TREATY , ART . 48 ( 3 ))
4 . FREE MOVEMENT OF PERSONS – DEROGATIONS – DECISIONS RELATING TO THE CONTROL OF ALIENS – EXPULSION ORDER – STATEMENT OF GROUNDS ON WHICH IT IS BASED – EXTENT OF THE OBLIGATION
5 . FREE MOVEMENT OF PERSONS – DEROGATIONS – DECISIONS RELATING TO THE CONTROL OF ALIENS – PROCEDURE FOR REVIEW AND THE ISSUE OF AN OPINION BY THE COMPETENT AUTHORITY – COMPETENT AUTHORITY – PRESCRIBED CONDITION – ABSOLUTELY INDEPENDENT EXERCISE OF DUTIES – COURT – AUTHORITY COMPOSED OF MEMBERS OF THE JUDICIARY – CONDITIONS NOT NECESSARY
( COUNCIL DIRECTIVE NO 64/221/EEC , ART . 9 )
6 . FREE MOVEMENT OF PERSONS – DEROGATIONS – DECISIONS RELATING TO THE CONTROL OF ALIENS – PROCEDURE FOR REVIEW AND THE ISSUE OF AN OPINION BY THE COMPETENT AUTHORITY – DIRECT APPLICATION BY THE PERSON CONCERNED TO THE COMPETENT AUTHORITY – COMPULSORY PROCEDURE – NON-EXISTENCE THEREOF – POWERS OF THE MEMBER STATES – LIMITS
( COUNCIL DIRECTIVE NO 64/221/EEC , ART . 9 ( 2 ))
7 . FREE MOVEMENT OF PERSONS – DEROGATIONS – DECISION RELATING TO THE CONTROL OF ALIENS – PROCEDURE FOR REVIEW AND THE ISSUE OF AN OPINION BY THE COMPETENT AUTHORITY – APPLICATION OF NATIONAL RULES OF PROCEDURE – CONDITIONS
( COUNCIL DIRECTIVE NO 64/221/EEC , ART . 9 )
1 . RELIANCE BY A NATIONAL AUTHORITY UPON THE CONCEPT OF PUBLIC POLICY PRESUPPOSES THE EXISTENCE OF A GENUINE AND SUFFICIENTLY SERIOUS THREAT AFFECTING ONE OF THE FUNDAMENTAL INTERESTS OF SOCIETY . ALTHOUGH COMMUNITY LAW DOES NOT IMPOSE UPON THE MEMBER STATES A UNIFORM SCALE OF VALUES AS REGARDS THE ASSESSMENT OF CONDUCT WHICH MAY BE CONSIDERED CONTRARY TO PUBLIC POLICY , CONDUCT MAY NOT BE CONSIDERED AS BEING OF A SUFFICIENTLY SERIOUS NATURE TO JUSTIFY RESTRICTIONS ON THE ADMISSION TO OR RESIDENCE WITHIN THE TERRITORY OF A MEMBER STATE OF A NATIONAL OF ANOTHER MEMBER STATE IN A CASE WHERE THE FORMER MEMBER STATE DOES NOT ADOPT , WITH RESPECT TO THE SAME CONDUCT ON THE PART OF ITS OWN NATIONALS , REPRESSIVE MEASURES OR OTHER GENUINE AND EFFECTIVE MEASURES INTENDED TO COMBAT SUCH CONDUCT .
2 . BY VIRTUE OF ARTICLE 3 ( 1 ) OF DIRECTIVE NO 64/221 , CIRCUMSTANCES NOT RELATED TO THE SPECIFIC CASE MAY NOT BE RELIED UPON IN RESPECT OF CITIZENS OF MEMBER STATES OF THE COMMUNITY AS JUSTIFICATION FOR MEASURES INTENDED TO SAFEGUARD PUBLIC POLICY AND PUBLIC SECURITY .
3 . ANY NATIONAL OF A MEMBER STATE WHO WISHES TO SEEK EMPLOYMENT IN ANOTHER MEMBER STATE MAY , EVEN IF A DECISION HAS BEEN TAKEN ORDERING HIS EXPULSION FROM THE TERRITORY OF THAT MEMBER STATE , RE-APPLY FOR A RESIDENCE PERMIT . SUCH AN APPLICATION , WHEN SUBMITTED AFTER A REASONABLE PERIOD HAS ELAPSED , MUST BE EXAMINED BY THE COMPETENT ADMINISTRATIVE AUTHORITY IN THE HOST STATE , WHICH MUST TAKE INTO ACCOUNT , IN PARTICULAR , THE ARGUMENTS PUT FORWARD BY THE PERSON CONCERNED PURPORTING TO ESTABLISH THAT THERE HAS BEEN A MATERIAL CHANGE IN THE CIRCUMSTANCES WHICH JUSTIFIED THE FIRST DECISION ORDERING HIS EXPULSION . HOWEVER , WHERE SUCH A DECISION HAS BEEN VALIDLY ADOPTED IN HIS CASE IN ACCORDANCE WITH COMMUNITY LAW AND CONTINUES TO BE LEGALLY EFFECTIVE SO AS TO EXCLUDE HIM FROM THE TERRITORY OF THE STATE IN QUESTION , COMMUNITY LAW CONTAINS NO PROVISION CONFERRING UPON HIM A RIGHT OF ENTRY INTO THAT TERRITORY DURING THE EXAMINATION OF HIS FURTHER APPLICATION .
4 . THE NOTIFICATION OF THE GROUNDS RELIED UPON TO JUSTIFY AN EXPULSION MEASURE OR A REFUSAL TO ISSUE A RESIDENCE PERMIT MUST BE SUFFICIENTLY DETAILED AND PRECISE TO ENABLE THE PERSON CONCERNED TO DEFEND HIS INTERESTS .
5 . AS REGARDS THE COMPOSITION OF THE COMPETENT AUTHORITY PROVIDED FOR IN ARTICLE 9 OF DIRECTIVE NO 64/221 , THE ESSENTIAL REQUIREMENT IS THAT IT SHOULD BE CLEARLY ESTABLISHED THAT THE AUTHORITY IS TO PERFORM ITS DUTIES IN ABSOLUTE INDEPENDENCE AND IS NOT TO BE DIRECTLY OR INDIRECTLY SUBJECT , IN THE EXERCISE OF ITS DUTIES , TO ANY CONTROL BY THE AUTHORITY EMPOWERED TO TAKE THE MEASURES PROVIDED FOR IN THE DIRECTIVE .
6 . ALTHOUGH ARTICLE 9 ( 2 ) OF DIRECTIVE NO 64/221 DOES NOT PREVENT THE PERSON CONCERNED FROM MAKING A DIRECT APPLICATION TO THE COMPETENT AUTHORITY IT DOES NOT REQUIRE SUCH AN APPLICATION AND IT ALLOWS THE MEMBER STATE A CHOICE IN THAT RESPECT , PROVIDED THAT THE PERSON CONCERNED IS ENTITLED TO MAKE SUCH AN APPLICATION IF HE SO REQUESTS .
7 . THE CONDITIONS ON WHICH THE PERSON CONCERNED MUST BE ENTITLED TO PUT FORWARD TO THE COMPETENT AUTHORITY HIS ARGUMENTS IN DEFENCE AND TO BE ASSISTED OR REPRESENTED IN SUCH CONDITIONS AS TO PROCEDURE AS ARE PROVIDED FOR BY DOMESTIC LEGISLATION MUST NOT BE LESS FAVOURABLE TO HIM THAN THE CONDITIONS APPLICABLE TO PROCEEDINGS BEFORE OTHER NATIONAL AUTHORITIES OF THE SAME TYPE .
IN JOINED CASES 115 AND 116/81
REFERENCES TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE PRESIDENT OF THE TRIBUNAL DE PREMIERE INSTANCE ( COURT OF FIRST INSTANCE ), SITTING AT LIEGE IN INTERLOCUTORY PROCEEDINGS , FOR A PRELIMINARY RULING IN THE ACTIONS PENDING BEFORE HIM BETWEEN , ON THE ONE HAND ,
REZGUIA ADOUI
AND
1 . BELGIAN STATE , IN THE PERSON OF THE MINISTER OF JUSTICE , AND
2 . CITY OF LIEGE , IN THE PERSON OF THE BOURGMESTRE ,
AND , ON THE OTHER ,
DOMINIQUE CORNUAILLE
AND
BELGIAN STATE , IN THE PERSON OF THE MINISTER OF JUSTICE ,
ON THE INTERPRETATION OF ARTICLES 7 , 48 ( 3 ), 56 ( 1 ) AND 66 OF THE TREATY AND OF COUNCIL DIRECTIVE NO 64/221/EEC OF 25 FEBRUARY 1964 ON THE CO-ORDINATION OF SPECIAL MEASURES CONCERNING THE MOVEMENT AND RESIDENCE OF FOREIGN NATIONALS WHICH ARE JUSTIFIED ON GROUND OF PUBLIC POLICY , PUBLIC SECURITY OR PUBLIC HEALTH ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1963-1964 , P . 117 ), AND IN PARTICULAR OF ARTICLES 3 , 6 , 8 AND 9 THEREOF
1 BY ORDERS OF 8 MAY 1981 , RECEIVED AT THE COURT REGISTRY ON 12 MAY 1981 , THE PRESIDENT OF THE TRIBUNAL DE PREMIERE INSTANCE ( COURT OF FIRST INSTANCE ), LIEGE , IN INTERLOCUTORY PROCEEDINGS , REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A NUMBER OF QUESTIONS ON THE INTERPRETATION OF ARTICLES 7 , 48 ( 3 ), 56 ( 1 ) AND 66 OF THE TREATY AND OF DIRECTIVE NO 64/221/EEC OF THE COUNCIL , OF 25 FEBRUARY 1964 , ON THE CO-ORDINATION OF SPECIAL MEASURES CONCERNING THE MOVEMENT AND RESIDENCE OF FOREIGN NATIONALS WHICH ARE JUSTIFIED ON GROUNDS OF PUBLIC POLICY , PUBLIC SECURITY OR PUBLIC HEALTH ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1963-1964 , P . 117 ), AND IN PARTICULAR ARTICLES 3 , 6 , 8 AND 9 THEREOF .
2 THE QUESTIONS WERE RAISED IN ACTIONS BROUGHT AGAINST THE BELGIAN STATE BY THE PLAINTIFFS IN THE MAIN PROCEEDINGS , WHO ARE OF FRENCH NATIONALITY , IN CONNECTION WITH THE REFUSAL BY THE ADMINISTRATIVE AUTHORITY TO ISSUE A PERMIT ENABLING THEM TO RESIDE IN BELGIAN TERRITORY , ON THE GROUND THAT THEIR CONDUCT WAS CONSIDERED TO BE CONTRARY TO PUBLIC POLICY BY VIRTUE OF THE FACT THAT THEY WERE WAITRESSES IN A BAR WHICH WAS SUSPECT FROM THE POINT OF VIEW OF MORALS .
3 THE BELGIAN LAW OF 21 AUGUST 1948 TERMINATING OFFICIAL REGULATION OF PROSTITUTION PROHIBITS SOLICITING , INCITEMENT TO DEBAUCHERY , EXPLOITATION OF PROSTITUTION , THE KEEPING OF A DISORDERLY HOUSE OR BROTHEL AND LIVING ON IMMORAL EARNINGS . IT PROVIDES THAT SUPPLEMENTARY REGULATIONS MAY BE ADOPTED BY MUNICIPAL COUNCILS , PROVIDED THAT THEIR PURPOSE IS TO UPHOLD PUBLIC MORALITY OR TO ENSURE THE KEEPING OF THE PUBLIC PEACE . THE POLICE REGULATION OF THE CITY OF LIEGE OF 25 MARCH 1957 AND SUBSEQUENT ORDERS PROVIDE THAT PERSONS ENGAGED IN PROSTITUTION MAY NOT DISPLAY THEMSELVES TO PASSERS-BY , THAT THE DOORS AND WINDOWS OF THE PREMISES WHERE THEY PURSUE THEIR ACTIVITY ARE TO BE CLOSED AND COVERED SO THAT IT IS IMPOSSIBLE TO SEE INSIDE AND THAT THOSE PERSONS MAY NOT STAND IN THE STREET NEAR SUCH PREMISES .
4 THE QUESTIONS SUBMITTED BY THE NATIONAL COURT , THE WORDING OF WHICH IS PRACTICALLY IDENTICAL IN BOTH CASES , HAVE BEEN DIVIDED BY THE COURT MAKING THE REFERENCE INTO TWO GROUPS , ENTITLED ‘ ‘ THE CONCEPT OF PUBLIC POLICY ‘ ‘ AND ‘ ‘ PROCEDURAL SAFEGUARDS ‘ ‘ . IN VIEW OF THE FACT THAT THE QUESTIONS IN THE TWO CASES ARE ALMOST IDENTICAL , IT IS APPROPRIATE TO JOIN THE CASES FOR THE PURPOSE OF THE JUDGMENT .
I – THE CONCEPT OF PUBLIC POLICY
QUESTIONS 1 TO 9 , 11 AND 12
5 QUESTIONS 1 TO 9 , 11 AND 12 ARE ESSENTIALLY CONCERNED WITH THE QUESTION WHETHER A MEMBER STATE MAY , BY VIRTUE OF THE RESERVATIONS CONTAINED IN ARTICLES 48 AND 56 OF THE EEC TREATY , EXPEL FROM ITS TERRITORY A NATIONAL OF ANOTHER MEMBER STATE OR DENY HIM ACCESS TO THAT TERRITORY BY REASON OF ACTIVITIES WHICH , WHEN ATTRIBUTABLE TO THE FORMER STATE ‘ S OWN NATIONALS , DO NOT GIVE RISE TO REPRESSIVE MEASURES .
6 THOSE QUESTIONS ARE MOTIVATED BY THE FACT THAT PROSTITUTION AS SUCH IS NOT PROHIBITED BY BELGIAN LEGISLATION , ALTHOUGH THE LAW DOES PROHIBIT CERTAIN INCIDENTAL ACTIVITIES , WHICH ARE PARTICULARLY HARMFUL FROM THE SOCIAL POINT OF VIEW , SUCH AS THE EXPLOITATION OF PROSTITUTION BY THIRD PARTIES AND VARIOUS FORMS OF INCITEMENT TO DEBAUCHERY .
7 THE RESERVATIONS CONTAINED IN ARTICLES 48 AND 56 OF THE EEC TREATY PERMIT MEMBER STATES TO ADOPT , WITH RESPECT TO THE NATIONALS OF OTHER MEMBER STATES AND ON THE GROUNDS SPECIFIED IN THOSE PROVISIONS , IN PARTICULAR GROUNDS JUSTIFIED BY THE REQUIREMENTS OF PUBLIC POLICY , MEASURES WHICH THEY CANNOT APPLY TO THEIR OWN NATIONALS , INASMUCH AS THEY HAVE NO AUTHORITY TO EXPEL THE LATTER FROM THE NATIONAL TERRITORY OR TO DENY THEM ACCESS THERETO . ALTHOUGH THAT DIFFERENCE OF TREATMENT , WHICH BEARS UPON THE NATURE OF THE MEASURES AVAILABLE , MUST THEREFORE BE ALLOWED , IT MUST NEVERTHELESS BE STRESSED THAT , IN A MEMBER STATE , THE AUTHORITY EMPOWERED TO ADOPT SUCH MEASURES MUST NOT BASE THE EXERCISE OF ITS POWERS ON ASSESSMENTS OF CERTAIN CONDUCT WHICH WOULD HAVE THE EFFECT OF APPLYING AN ARBITRARY DISTINCTION TO THE DETRIMENT OF NATIONALS OF OTHER MEMBER STATES .
8 IT SHOULD BE NOTED IN THAT REGARD THAT RELIANCE BY A NATIONAL AUTHORITY UPON THE CONCEPT OF PUBLIC POLICY PRESUPPOSES , AS THE COURT HELD IN ITS JUDGMENT OF 27 OCTOBER 1977 IN CASE 30/77 BOUCHEREAU ( 1977 ) ECR 1999 , THE EXISTENCE OF ‘ ‘ A GENUINE AND SUFFICIENTLY SERIOUS THREAT AFFECTING ONE OF THE FUNDAMENTAL INTERESTS OF SOCIETY ‘ ‘ . ALTHOUGH COMMUNITY LAW DOES NOT IMPOSE UPON THE MEMBER STATES A UNIFORM SCALE OF VALUES AS REGARDS THE ASSESSMENT OF CONDUCT WHICH MAY BE CONSIDERED AS CONTRARY TO PUBLIC POLICY , IT SHOULD NEVERTHELESS BE STATED THAT CONDUCT MAY NOT BE CONSIDERED AS BEING OF A SUFFICIENTLY SERIOUS NATURE TO JUSTIFY RESTRICTIONS ON THE ADMISSION TO OR RESIDENCE WITHIN THE TERRITORY OF A MEMBER STATE OF A NATIONAL OF ANOTHER MEMBER STATE IN A CASE WHERE THE FORMER MEMBER STATE DOES NOT ADOPT , WITH RESPECT TO THE SAME CONDUCT ON THE PART OF ITS OWN NATIONALS REPRESSIVE MEASURES OR OTHER GENUINE AND EFFECTIVE MEASURES INTENDED TO COMBAT SUCH CONDUCT .
9 THE ANSWER TO QUESTIONS 1 TO 9 , 11 AND 12 SHOULD THERFORE BE THAT A MEMBER STATE MAY NOT , BY VIRTUE OF THE RESERVATION RELATING TO PUBLIC POLICY CONTAINED IN ARTICLES 48 AND 56 OF THE TREATY , EXPEL A NATIONAL OF ANOTHER MEMBER STATE FROM ITS TERRITORY OR REFUSE HIM ACCESS TO ITS TERRITORY BY REASON OF CONDUCT WHICH , WHEN ATTRIBUTABLE TO THE FORMER STATE ‘ S OWN NATIONALS , DOES NOT GIVE RISE TO REPRESSIVE MEASURES OR OTHER GENUINE AND EFFECTIVE MEASURES INTENDED TO COMBAT SUCH CONDUCT .
THE TENTH QUESTION
10 IN THE TENTH QUESTION , THE NATIONAL COURT ASKS WHETHER THE ACTION TAKEN BY A MEMBER STATE WHICH , ‘ ‘ ANXIOUS TO REMOVE FROM ITS TERRITORY PROSTITUTES FROM A GIVEN COUNTRY BECAUSE THEY COULD PROMOTE CRIMINAL ACTIVITIES , DOES SO SYSTEMATICALLY , DECLARING THAT THEIR BUSINESS OF PROSTITUTION ENDANGERS THE REQUIREMENTS OF PUBLIC POLICY AND NOT TAKING THE TROUBLE TO CONSIDER WHETHER THE PERSONS CONCERNED MAY OR MAY NOT BE SUSPECTED OF CONTACT WITH THE ‘ UNDERWORLD ‘ ‘ ‘ , CONSTITUTES A MEASURE OF A GENERAL PREVENTIVE NATURE WITHIN THE MEANING OF ARTICLE 3 OF DIRECTIVE NO 64/221 .
11 IT SHOULD BE NOTED THAT ARTICLE 3 ( 1 ) OF THE DIRECTIVE PROVIDES THAT MEASURES TAKEN ON GROUNDS OF PUBLIC POLICY OR OF PUBLIC SECURITY ARE TO BE BASED EXCLUSIVELY ON THE PERSONAL CONDUCT OF THE INDIVIDUAL CONCERNED . IN THAT REGARD IT IS SUFFICIENT TO REFER TO THE JUDGMENT OF 26 FEBRUARY 1975 IN CASE 67/74 BONSIGNORE ( 1975 ) ECR 297 , IN WHICH THE COURT HELD THAT ‘ ‘ MEASURES ADOPTED ON GROUNDS OF PUBLIC POLICY AND FOR THE MAINTENANCE OF PUBLIC SECURITY AGAINST THE NATIONALS OF MEMBER STATES OF THE COMMUNITY CANNOT BE JUSTIFIED ON GROUNDS EXTRANEOUS TO THE INDIVIDUAL CASE , AS IS SHOWN IN PARTICULAR BY THE REQUIREMENTS SET OUT IN PARAGRAPH ( 1 ) THAT ‘ ONLY ‘ THE ‘ PERSONAL CONDUCT ‘ OF THOSE AFFECTED BY THE MEASURES IS TO BE REGARDED AS DETERMINATIVE ‘ ‘ .
THE THIRTEENTH QUESTION
12 AS REGARDS THE POSSIBILITY FOR A PERSON AGAINST WHOM A DECISION HAS BEEN TAKEN ORDERING HIS EXPULSION FROM THE TERRITORY OF A MEMBER STATE TO BE RE-ADMITTED TO THE TERRITORY OF THE STATE IN QUESTION AND APPLY THERE FOR A FRESH RESIDENCE PERMIT , IT MUST BE STRESSED THAT ANY NATIONAL OF A MEMBER STATE WHO WISHES TO SEEK EMPLOYMENT IN ANOTHER MEMBER STATE MAY RE-APPLY FOR A RESIDENCE PERMIT . SUCH AN APPLICATION , WHEN SUBMITTED AFTER A REASONABLE PERIOD HAS ELAPSED , MUST BE EXAMINED BY THE COMPETENT ADMINISTRATIVE AUTHORITY IN THE HOST STATE , WHICH MUST TAKE INTO ACCOUNT , IN PARTICULAR , THE ARGUMENTS PUT FORWARD BY THE PERSON CONCERNED PURPORTING TO ESTABLISH THAT THERE HAS BEEN A MATERIAL CHANGE IN THE CIRCUMSTANCES WHICH JUSTIFIED THE FIRST DECISION ORDERING HIS EXPULSION . HOWEVER , WHERE SUCH A DECISION HAS BEEN VALIDLY ADOPTED IN HIS CASE IN ACCORDANCE WITH COMMUNITY LAW AND CONTINUES TO BE LEGALLY EFFECTIVE SO AS TO EXCLUDE HIM FROM THE TERRITORY OF THE STATE IN QUESTION , COMMUNITY LAW CONTAINS NO PROVISION CONFERRING UPON HIM A RIGHT OF ENTRY INTO THAT TERRITORY DURING THE EXAMINATION OF HIS FURTHER APPLICATION .
THE FOURTEENTH QUESTION
13 ARTICLE 6 OF DIRECTIVE NO 64/221 PROVIDES THAT THE PERSON CONCERNED IS TO BE INFORMED OF THE GROUNDS OF PUBLIC POLICY , PUBLIC SECURITY OR PUBLIC HEALTH UPON WHICH THE DECISION TAKEN IN HIS CASE IS BASED UNLESS THIS IS CONTRARY TO THE INTERESTS OF THE SECURITY OF THE STATE . IT IS CLEAR FROM THE PURPOSE OF THE DIRECTIVE THAT THE NOTIFICATION OF THE GROUNDS MUST BE SUFFICIENTLY DETAILED AND PRECISE TO ENABLE THE PERSON CONCERNED TO DEFEND HIS INTERESTS . AS REGARDS THE LANGUAGE TO BE USED , IT APPEARS FROM THE FILE ON THE CASE THAT THE PLAINTIFFS IN THE MAIN PROCEEDINGS ARE OF FRENCH NATIONALITY AND THAT THE DECISIONS AFFECTING THEM WERE DRAWN UP IN FRENCH , SO THAT THE RELEVANCE OF THE QUESTION IS NOT CLEAR . IT IS SUFFICIENT IN ANY EVENT IF THE NOTIFICATION IS MADE IN SUCH A WAY AS TO ENABLE THE PERSON CONCERNED TO COMPREHEND THE CONTENT AND EFFECT THEREOF .
II – QUESTIONS REGARDING PROCEDURAL SAFEGUARDS
14 THESE QUESTIONS RELATE ESSENTIALLY TO THE COMPOSITION OF THE ‘ ‘ COMPETENT AUTHORITY ‘ ‘ REFERRED TO IN ARTICLE 9 OF DIRECTIVE NO 64/221 , THE QUALIFICATIONS AND THE TERM OF OFFICE OF ITS MEMBERS , POSSIBLE CONNECTIONS BETWEEN THOSE MEMBERS AND THE AUTHORITY REMUNERATING THEM , THE MANNER IN WHICH THE MATTER IS BROUGHT BEFORE THE AUTHORITY AND THE PROCEDURE BEFORE THAT AUTHORITY .
15 THE OBJECT OF ARTICLE 9 ( 1 ) OF THE DIRECTIVE IS TO ENSURE A MINIMUM PROCEDURAL SAFEGUARD FOR PERSONS AGAINST WHOM AN EXPULSION MEASURE HAS BEEN ADOPTED . WHERE ANY APPEAL TO A COURT OF LAW AGAINST ADMINISTRATIVE MEASURES RELATES ONLY TO THE LEGAL VALIDITY OF THE DECISION , THE INTERVENTION ON THE PART OF THE COMPETENT AUTHORITY MUST MAKE IT POSSIBLE FOR AN EXAMINATION TO BE MADE OF THE FACTS AND CIRCUMSTANCES , INCLUDING THE DISCRETIONARY FACTORS ON WHICH THE MEASURE IN QUESTION WAS BASED , BEFORE THE DECISION IS DEFINITIVELY ADOPTED . THE PERSON CONCERNED MUST BE ENTITLED TO PUT FORWARD TO THE COMPETENT AUTHORITY HIS ARGUMENTS IN DEFENCE AND TO BE ASSISTED OR REPRESENTED IN SUCH CONDITIONS AS TO PROCEDURE AS ARE PROVIDED FOR BY DOMESTIC LEGISLATION . PARAGRAPH ( 2 ) OF THE SAME ARTICLE PROVIDES THAT PERSONS AGAINST WHOM DECISIONS HAVE BEEN ADOPTED REFUSING THE ISSUE OF A FIRST RESIDENCE PERMIT OR ORDERING EXPULSION BEFORE THE ISSUE OF THE PERMIT MAY REQUEST THAT SUCH DECISIONS BE CONSIDERED BY THE COMPETENT AUTHORITY .
16 THE DIRECTIVE DOES NOT SPECIFY HOW THE COMPETENT AUTHORITY REFERRED TO IN ARTICLE 9 IS APPOINTED . IT DOES NOT REQUIRE THAT AUTHORITY TO BE A COURT OR TO BE COMPOSED OF MEMBERS OF THE JUDICIARY . NOR DOES IT REQUIRE THE MEMBERS OF THE COMPETENT AUTHORITY TO BE APPOINTED FOR A SPECIFIC PERIOD . THE ESSENTIAL REQUIREMENT IS THAT IT SHOULD BE CLEARLY ESTABLISHED THAT THE AUTHORITY IS TO PERFORM ITS DUTIES IN ABSOLUTE INDEPENDENCE AND IS NOT TO BE DIRECTLY OR INDIRECTLY SUBJECT , IN THE EXERCISE OF ITS DUTIES , TO ANY CONTROL BY THE AUTHORITY EMPOWERED TO TAKE THE MEASURES PROVIDED FOR IN THE DIRECTIVE . PROVIDED THAT THAT REQUIREMENT IS SATISFIED , IT IS NOT CONTRARY TO THE PROVISIONS OF THE DIRECTIVE , OR TO ITS PUPOSE , FOR THE REMUNERATION OF THE MEMBERS OF THE AUTHORITY TO BE CHARGED TO THE BUDGET OF THE DEPARTMENT OF THE ADMINISTRATION OF WHICH THE AUTHORITY EMPOWERED TO TAKE THE DECISION IN QUESTION FORMS PART OR FOR AN OFFICIAL BELONGING TO THAT ADMINISTRATION TO SERVE AS SECRETARY TO THE COMPETENT AUTHORITY .
17 AS REGARDS THE MANNER IN WHICH THE MATTER IS BROUGHT BEFORE THE COMPETENT AUTHORITY IN THE CIRCUMSTANCES REFERRED TO IN ARTICLE 9 ( 2 ) OF THE DIRECTIVE , THE LATTER CONTAINS NO BINDING PROVISION AS REGARDS THE PROCEDURES IN THAT RESPECT . ALTHOUGH IT DOES NOT PREVENT THE PERSON CONCERNED FROM MAKING A DIRECT APPLICATION TO THE AUTHORITY , IT DOES NOT REQUIRE SUCH AN APPLICATION AND IT ALLOWS THE MEMBER STATES A CHOICE IN THAT RESPECT , PROVIDED THAT THE MATTER IS BROUGHT BEFORE THE STATE AUTHORITY ONCE THE PERSON CONCERNED HAS SO REQUESTED .
18 AS REGARDS THE FORM OF THE OPINION OF THE COMPETENT AUTHORITY , IT IS EVIDENT FROM THE OBJECTIVES OF THE SYSTEM PROVIDED FOR BY THE DIRECTIVE THAT THE OPINION MUST BE DULY NOTIFIED TO THE PERSON CONCERNED BUT THE DIRECTIVE DOES NOT REQUIRE THE OPINION TO IDENTIFY BY NAME THE MEMBERS OF THE AUTHORITY OR INDICATE THEIR PROFESSIONAL STATUS .
19 AS REGARDS THE QUESTIONS RELATING TO PROCEDURE BEFORE THE COMPETENT AUTHORITY , INCLUDING NOT ONLY THE RULES OF PROCEDURE BUT ALSO THE RULES OF EVIDENCE , IT IS SUFFICIENT TO POINT OUT , AS HAS BEEN INDICATED ABOVE , THAT ARTICLE 9 ( 1 ) OF DIRECTIVE NO 64/221 EXPRESSLY PROVIDES THAT THE PERSON CONCERNED MUST BE ENTITLED TO PUT FORWARD HIS ARGUMENTS IN DEFENCE BEFORE THAT AUTHORITY AND TO BE ASSISTED OR REPRESENTED IN SUCH CONDITIONS AS TO PROCEDURE AS ARE PROVIDED FOR BY DOMESTIC LEGISLATION . THOSE CONDITIONS MUST NOT BE LESS FAVOURABLE TO THE PERSON CONCERNED THAN THE CONDITIONS APPLICABLE TO PROCEEDINGS BEFORE OTHER NATIONAL AUTHORITIES OF THE SAME TYPE .
COSTS
20 THE COSTS INCURRED BY THE BELGIAN GOVERNMENT , THE FRENCH GOVERNMENT , THE ITALIAN GOVERNMENT , THE NETHERLANDS GOVERNMENT , THE UNITED KINGDOM AND THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED , IN THE NATURE OF A STEP IN THE PROCEEDINGS PENDING BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
ON THOSE GROUNDS ,
THE COURT
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE PRESIDENT OF THE TRIBUNAL DE PREMIERE INSTANCE , LIEGE BY ORDERS OF 8 MAY 1981 , HEREBY RULES :
1 . A MEMBER STATE MAY NOT , BY VIRTUE OF THE RESERVATION RELATING TO PUBLIC POLICY CONTAINED IN ARTICLES 48 AND 56 OF THE TREATY , EXPEL A NATIONAL OF ANOTHER MEMBER STATE FROM ITS TERRITORY OR REFUSE HIM ACCESS TO ITS TERRITORY BY REASON OF CONDUCT WHICH , WHEN ATTRIBUTABLE TO THE FORMER STATE ‘ S OWN NATIONALS , DOES NOT GIVE RISE TO REPRESSIVE MEASURES OR OTHER GENUINE AND EFFECTIVE MEASURES INTENDED TO COMBAT SUCH CONDUCT .
2 . CIRCUMSTANCES NOT RELATED TO THE SPECIFIC CASE MAY NOT BE RELIED UPON IN RESPECT OF CITIZENS OF THE COMMUNITY , AS JUSTIFICATION FOR MEASURES INTENDED TO SAFEGUARD PUBLIC POLICY AND PUBLIC SECURITY .
3 . ANY NATIONAL OF A MEMBER STATE WHO WISHES TO SEEK EMPLOYMENT IN ANOTHER MEMBER STATE MAY , IF A MEASURE EXPELLING HIM FROM THE TERRITORY OF THAT STATE HAS PREVIOUSLY BEEN ADOPTED , REAPPLY FOR A RESIDENCE PERMIT . WHERE SUCH AN APPLICATION IS LODGED AFTER A REASONABLE PERIOD HAS ELAPSED , IT MUST BE EXAMINED BY THE APPROPRIATE ADMINISTRATIVE AUTHORITY IN THE HOST STATE , WHICH MUST TAKE INTO ACCOUNT , IN PARTICULAR , THE ARGUMENTS PUT FORWARD BY THE PERSON CONCERNED IN ORDER TO ESTABLISH THAT THERE HAS BEEN A MATERIAL CHANGE IN THE CIRCUMSTANCES JUSTIFYING THE FIRST EXPULSION MEASURE .
4 . THE NOTIFICATION OF THE GROUNDS RELIED UPON TO JUSTIFY AN EXPULSION MEASURE OR A REFUSAL TO ISSUE A RESIDENCE PERMIT MUST BE SUFFICIENTLY DETAILED AND PRECISE TO ENABLE THE PERSON CONCERNED TO DEFEND HIS INTERESTS .
5 . COMMUNITY LAW DOES NOT REQUIRE THAT THE COMPETENT AUTHORITY REFERRED TO IN ARTICLE 9 OF DIRECTIVE NO 64/221 BE A COURT OR BE MADE UP OF MEMBERS OF THE JUDICIARY , OR THAT ITS MEMBERS BE APPOINTED FOR A SPECIFIED PERIOD . IT IS NOT CONTRARY TO COMMUNITY LAW FOR THE REMUNERATION OF THE MEMBERS OF THE AUTHORITY TO BE CHARGED TO THE BUDGET OF THE DEPARTMENT OF THE ADMINISTRATION OF WHICH THE AUTHORITY EMPOWERED TO TAKE THE DECISION IN QUESTION FORMS PART , OR FOR AN OFFICIAL BELONGING TO THAT ADMINISTRATION TO SERVE AS SECRETARY TO THE COMPETENT AUTHORITY .
6 . ALTHOUGH DIRECTIVE NO 64/221 DOES NOT PREVENT THE PERSON CONCERNED FROM MAKING A DIRECT APPLICATION TO THE COMPETENT AUTHORITY IT DOES NOT REQUIRE SUCH AN APPLICATION AND IT ALLOWS THE MEMBER STATES A CHOICE IN THAT RESPECT , PROVIDED THAT THE PERSON CONCERNED IS ENTITLED TO MAKE SUCH AN APPLICATION IF HE SO REQUESTS .
7 . THE OPINION OF THE COMPETENT AUTHORITY MUST BE DULY NOTIFIED TO THE PERSON CONCERNED .
8 . THE PERSON CONCERNED MUST BE ENTITLED TO PUT FORWARD TO THE COMPETENT AUTHORITY HIS ARGUMENTS IN DEFENCE AND TO BE ASSISTED OR REPRESENTED IN SUCH CONDITIONS AS TO PROCEDURE AS ARE PROVIDED FOR BY DOMESTIC LEGISLATION . THOSE CONDITIONS MUST NOT BE LESS FAVOURABLE TO THE PERSON CONCERNED THAN THE CONDITIONS APPLICABLE TO PROCEEDINGS BEFORE OTHER NATIONAL AUTHORITIES OF THE SAME TYPE .
Tsakouridis
2010] EUECJ C-145/09 (23 November 2010)
Cite as: ECLI:EU:C:2010:708, [2011] CEC 714, [2011] Imm AR 276, [2010] EUECJ C-145/09, EU:C:2010:708, [2011] INLR 415, [2010] ECR I-11979, [2013] All ER (EC) 183, [2011] 2 CMLR 11
JUDGMENT OF THE COURT (Grand Chamber)
23 November 2010 (*)
(Freedom of movement for persons – Directive 2004/38/EC – Articles 16(4) and 28(3)(a) – Union citizen born and having resided for over 30 years in the host Member State – Absences from the host Member State – Criminal convictions – Expulsion decision – Imperative grounds of public security)
In Case C-145/09,
REFERENCE for a preliminary ruling under Article 234 EC from the Verwaltungsgerichtshof Baden-Württemberg (Germany), made by decision of 9 April 2009, received at the Court on 24 April 2009, in the proceedings
Land Baden-Württemberg
v
Panagiotis Tsakouridis,
THE COURT (Grand Chamber),
composed of V. Skouris, President, A. Tizzano, J.N. Cunha Rodrigues (Rapporteur), K. Lenaerts, J.’C. Bonichot, D. � váby, Presidents of Chambers, A. Rosas, J. Malenovský, U. Lõhmus, E. Levits, A. Ó Caoimh, L. Bay Larsen and M. Berger, Judges,
Advocate General: Y. Bot,
Registrar: B. Fülöp, Administrator,
having regard to the written procedure and further to the hearing on 20 April 2010,
after considering the observations submitted on behalf of:
– Land Baden-Württemberg, by M. Schenk, acting as Agent,
– Mr Tsakouridis, by K. Frank, Rechtsanwalt,
– the German Government, by M. Lumma, J. Möller and C. Blaschke, acting as Agents,
– the Belgian Government, by L. Van den Broeck, acting as Agent,
– the Danish Government, by B. Weis Fogh, acting as Agent,
– the Estonian Government, by L. Uibo, acting as Agent,
– the Hungarian Government, by R. Somssich, M. Fehér and K. Veres, acting as Agents,
– the Austrian Government, by E. Riedl, acting as Agent,
– the Polish Government, by M. Dowgielewicz, acting as Agent,
– the United Kingdom Government, by L. Seeboruth and I. Rao, acting as Agents, and K. Beal, Barrister,
– the European Commission, by D. Maidani and S. Grünheid, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 8 June 2010,
gives the following
Judgment
1 This reference for a preliminary ruling concerns the interpretation of Articles 16(4) and 28(3)(a) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77, and corrigenda OJ 2004 L 229, p. 35, and OJ 2005 L 197, p. 34).
2 The reference has been made in proceedings between Land Baden-Württemberg and Mr Tsakouridis, a Greek national, concerning the decision of that Land determining the loss of his right of entry and residence in the Federal Republic of Germany and the threatened decision to expel him.
Legal context
Directive 2004/38
3 Recital 3 in the preamble to Directive 2004/38 states:
‘Union citizenship should be the fundamental status of nationals of the Member States when they exercise their right of free movement and residence. It is therefore necessary to codify and review the existing Community instruments dealing separately with workers, self-employed persons, as well as students and other inactive persons in order to simplify and strengthen the right of free movement and residence of all Union citizens.’
4 According to recital 22 in the preamble to that directive:
‘The Treaty allows restrictions to be placed on the right of free movement and residence on grounds of public policy, public security or public health. In order to ensure a tighter definition of the circumstances and procedural safeguards subject to which Union citizens and their family members may be denied leave to enter or may be expelled, this Directive should replace Council Directive 64/221/EEC of 25 February 1964 on the coordination of special measures concerning the movement and residence of foreign nationals, which are justified on grounds of public policy, public security or public health [(OJ, English Special Edition 1963’1964, p. 117), as amended by Council Directive 75/35/EEC of 17 December 1974 (OJ 1975 L 14, p. 14)].’
5 According to recitals 23 and 24 in the preamble to the directive:
‘(23) Expulsion of Union citizens and their family members on grounds of public policy or public security is a measure that can seriously harm persons who, having availed themselves of the rights and freedoms conferred on them by the [EC] Treaty, have become genuinely integrated into the host Member State. The scope for such measures should therefore be limited in accordance with the principle of proportionality to take account of the degree of integration of the persons concerned, the length of their residence in the host Member State, their age, state of health, family and economic situation and the links with their country of origin.
(24) Accordingly, the greater the degree of integration of Union citizens and their family members in the host Member State, the greater the degree of protection against expulsion should be. Only in exceptional circumstances, where there are imperative grounds of public security, should an expulsion measure be taken against Union citizens who have resided for many years in the territory of the host Member State, in particular when they were born and have resided there throughout their life. In addition, such exceptional circumstances should also apply to an expulsion measure taken against minors, in order to protect their links with their family, in accordance with the United Nations Convention on the Rights of the Child, of 20 November 1989.’
6 Article 16 of the directive provides:
‘1. Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there. This right shall not be subject to the conditions provided for in Chapter III.
…
3. Continuity of residence shall not be affected by temporary absences not exceeding a total of six months a year, or by absences of a longer duration for compulsory military service, or by one absence of a maximum of 12 consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country.
4. Once acquired, the right of permanent residence shall be lost only through absence from the host Member State for a period exceeding two consecutive years.’
7 Article 27(1) and (2) of the directive provide:
‘1. Subject to the provisions of this Chapter, Member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. These grounds shall not be invoked to serve economic ends.
2. Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures.
The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted.’
8 Under Article 28 of the directive:
‘1. Before taking an expulsion decision on grounds of public policy or public security, the host Member State shall take account of considerations such as how long the individual concerned has resided on its territory, his/her age, state of health, family and economic situation, social and cultural integration into the host Member State and the extent of his/her links with the country of origin.
2. The host Member State may not take an expulsion decision against Union citizens or their family members, irrespective of nationality, who have the right of permanent residence on its territory, except on serious grounds of public policy or public security.
3. An expulsion decision may not be taken against Union citizens, except if the decision is based on imperative grounds of public security, as defined by Member States, if they:
(a) have resided in the host Member State for the previous 10 years; or
(b) are a minor, except if the expulsion is necessary for the best interests of the child, as provided for in the United Nations Convention on the Rights of the Child of 20 November 1989.’
9 Article 32(1) of the directive provides:
‘Persons excluded on grounds of public policy or public security may submit an application for lifting of the exclusion order after a reasonable period, depending on the circumstances, and in any event after three years from enforcement of the final exclusion order which has been validly adopted in accordance with Community law, by putting forward arguments to establish that there has been a material change in the circumstances which justified the decision ordering their exclusion.
The Member State concerned shall reach a decision on this application within six months of its submission.’
National legislation
10 Paragraph 6 of the Law on general freedom of movement of citizens of the Union (Gesetz über die allgemeine Freizügigkeit von Unionsbürgern) of 30 July 2004 (BGBl. 2004 I, p. 1950), as amended by the Law amending the Federal Police Law and other laws (Gesetz zur Änderung des Bundespolizeigesetzes und anderer Gesetze) of 26 February 2008 (BGBl. 2008 I, p. 215) (‘the FreizügG/EU’), provides:
‘(1) Loss of the right under Paragraph 2(1) may, without prejudice to Paragraph 5(5), be determined and the certificate of the Community-law right of residence or permanent residence withdrawn and the residence card or permanent residence card revoked only on grounds of public policy, security or health (Articles 39(3) and 46(1) of the Treaty on the European Community). Entry may also be refused on the grounds mentioned in the first sentence. A determination on grounds of public health may be made only if the illness occurs within the first three months from entry.
(2) The fact of a criminal conviction does not in itself suffice as grounds for the decisions or measures referred to in subparagraph 1. Only criminal convictions which have not yet been deleted in the federal central register may be taken into account, and only in so far as the circumstances on which they are based disclose personal conduct which constitutes a present threat to public policy. There must be a real and sufficiently serious threat which affects a fundamental interest of society.
(3) When a decision under subparagraph 1 is taken, account must be taken in particular of the duration of the person concerned’s residence in Germany, his age, his state of health, his family and economic situation, his social and cultural integration in Germany, and the extent of his ties to his State of origin.
(4) After the acquisition of the right of permanent residence, a determination under subparagraph 1 may be made only on serious grounds.
(5) In the case of Union citizens and their family members who have resided in Germany for the previous 10 years, and in the case of minors, a determination under subparagraph 1 may be made only on imperative grounds of public security. In the case of minors, this does not apply if the loss of the right of residence is necessary for the best interests of the child. Imperative grounds of public security can exist only if the person concerned has been sentenced by a binding judgment to imprisonment or youth custody of at least five years for one or more intentional criminal offences or a preventive detention order was made at the time of the last binding conviction, if the security of the Federal Republic of Germany is affected, or if the person concerned gives rise to a terrorist risk.
…’
The dispute in the main proceedings and the questions referred for a preliminary ruling
11 Mr Tsakouridis was born in Germany on 1 March 1978. In 1996 he obtained a secondary school leaving certificate. Since October 2001 he has had an unlimited residence permit in Germany. From March to mid-October 2004 he ran a pancake stall on the island of Rhodes in Greece. He then returned to Germany, where he worked from December 2004. In mid-October 2005 he went to Rhodes and resumed running the pancake stall. On 22 November 2005 the Amtsgericht Stuttgart (Local Court, Stuttgart) issued an international arrest warrant against him. On 19 November 2006 he was arrested on Rhodes, and he was transferred to Germany on 19 March 2007.
12 Mr Tsakouridis has the following criminal record. The Amtsgericht Stuttgart-Bad Cannstatt (Local Court, Stuttgart-Bad Cannstatt) sentenced him to several fines, namely on 14 October 1998 for possession of a prohibited object, on 15 June 1999 for dangerous assault, and on 8 February 2000 for intentional assault and compulsion. The Amtsgericht Stuttgart also fined him on 5 September 2002 for compulsion and intentional assault. Finally, he was convicted by the Landgericht Stutttgart (Regional Court, Stuttgart) on 28 August 2007 on eight counts of illegal dealing in substantial quantities of narcotics as part of an organised group, and sentenced to six years and six months’ imprisonment.
13 By decision of 19 August 2008, the Regierungspräsidium Stuttgart (Regional Administration, Stuttgart), after hearing Mr Tsakouridis, determined that he had lost the right of entry and residence in Germany and informed him that he was liable to be the subject of an expulsion measure to Greece, without setting a time’limit for a voluntary departure. As grounds, the Regierungspräsidium Stuttgart stated that the threshold of five years’ imprisonment had been crossed by the judgment of the Landgericht Stuttgart of 28 August 2007, so that the measures in question were justified on ‘imperative grounds of public security’ within the meaning of Article 28(3)(a) of Directive 2004/38 and Paragraph 6(5) of the FreizügG/EU.
14 According to the Regierungspräsidium Stuttgart, the personal conduct of Mr Tsakouridis represented a genuine threat to public policy. The offences committed by him in relation to dealing in narcotics were very serious and there was a real risk of reoffending. He had clearly been prepared to take part in illegal dealing in narcotics for financial reasons. He had been indifferent to the problems caused by that dealing for drug addicts and society in general. There was a fundamental interest of society in effectively combating, by all available means, crime connected with dealing in narcotics, which was particularly harmful from the social point of view.
15 The Regierungspräsidium Stuttgart also observed that Mr Tsakouridis was unwilling or unable to comply with the existing legal order. He had committed offences with an exceptionally high criminal intent. Possible impeccable behaviour while serving his sentence did not make it possible to conclude that there was no risk of reoffending. Since the conditions for the application of Paragraph 6 of the FreizügG/EU were satisfied, the decision was within the discretion of the authorities. Mr Tsakouridis’s personal interest in not losing his right of entry and residence because of his long lawful residence in Germany did not outweigh the predominant public interest in fighting against crime connected with dealing in narcotics. There was a very high probability that he would commit further offences.
16 In the opinion of the Regierungspräsidium Stuttgart, since in the course of recent years Mr Tsakouridis had spent several months in the territory of his Member State of origin, it was not to be expected that he would encounter difficulties of integration there after being expelled from German territory. The risk of reoffending also justified the interference with his right of free access, as a citizen of the Union, to the German labour market. There were no measures less restrictive than or equally appropriate as the measures imposed, and those measures did not interfere with already established economic means of existence.
17 In view of the seriousness of the offences found to have been committed, the Regierungspräsidium Stuttgart considered that the interference with Mr Tsakouridis’s private and family life was justified in the interests of the prevention of disorder and of further crimes for the purposes of Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, and no equivalent private and family interests could be discerned which would require the expulsion measure to be waived on grounds of proportionality.
18 On 17 September 2008 Mr Tsakouridis brought proceedings before the Verwaltungsgericht Stuttgart (Administrative Court, Stuttgart) against the decision of the Regierungspräsidium Stuttgart of 19 August 2008, relying on the fact that most of his family were living in Germany. In addition, it could be seen from the judgment of the Landgericht Stuttgart of 28 August 2007 that he was only a subordinate member of the gang. As he had been brought up in Germany and attended school there, there was no threat within the meaning of Paragraph 6(1) of the FreizügG/EU. He had a close relationship with his father, who lived in Germany and regularly visited him in prison. He had surrendered to the police voluntarily, which showed that he would no longer represent a threat to public policy after having served his sentence, so that the determination of the loss of his right of entry and residence in Germany was disproportionate. Finally, his mother, who was currently living with her daughter in Australia, would return to live definitively with her husband in Germany in spring 2009.
19 By judgment of 24 November 2008, the Verwaltungsgericht Stuttgart annulled the decision of the Regierungspräsidium Stuttgart of 19 August 2008. According to that court, a criminal conviction does not in itself suffice as grounds for the loss of the right of entry and residence of a Union citizen, as that loss presupposes a real and sufficiently serious danger which affects a fundamental interest of society within the meaning of Paragraph 6(2) of the FreizügG/EU. In addition, in the context of the transposition of Article 28(3) of Directive 2004/38, a determination of the loss of the right of entry and residence under Paragraph 6(1) of the FreizügG/EU could be made, in a case such as that of Mr Tsakouridis who had resided in Germany for over 10 years, only on imperative grounds of public security, as follows from the first sentence of Paragraph 6(5) of that law. The Verwaltungsgericht Stuttgart observed that Mr Tsakouridis had not lost his right of permanent residence as a result of his stays on Rhodes, the first sentence of Paragraph 6(5) not requiring uninterrupted residence in Germany for the previous 10 years.
20 The Verwaltungsgericht Stuttgart held that there were no ‘imperative grounds of public security’ within the meaning of the last sentence of Paragraph 6(5) of the FreizügG/EU to justify expulsion. Public security covered only the internal and external security of a Member State, and was accordingly narrower than the concept of public policy, which also covered domestic criminal law. That the minimum sentence mentioned in the last sentence of Paragraph 6(5) of the FreizügG/EU was exceeded did not make it possible to conclude that there were imperative grounds of public security for the purposes of expulsion. Mr Tsakouridis might possibly represent a substantial threat to public policy, but not to the existence of the State and its institutions or the survival of the population. Nor was any such matter relied on by the Regierungspräsidium Stuttgart.
21 The Verwaltungsgerichtshof Baden-Württemberg (Higher Administrative Court of Baden-Württemberg), hearing an appeal against the judgment of the Verwaltungsgericht Stuttgart of 24 November 2008, decided to stay the proceedings and refer the following questions to the Court for a preliminary ruling:
‘1. Is the expression “imperative grounds of public security” used in Article 28(3) of Directive 2004/38 … to be interpreted as meaning that only irrefutable threats to the external or internal security of the Member State can justify an expulsion, that is, only to the existence of the State and its essential institutions, their ability to function, the survival of the population, external relations and the peaceful coexistence of nations?
2. Under what conditions can the right to enhanced protection against expulsion achieved following 10 years of residence in the host Member State laid down in Article 28(3)(a) of Directive 2004/38 subsequently be lost? Is the condition for the loss of the right of permanent residence laid down in Article 16(4) of the directive to be applied mutatis mutandis in that context?
3. If Question 2 is answered in the affirmative and Article 16(4) of the directive applies mutatis mutandis: is the enhanced protection against expulsion lost by lapse of time alone, irrespective of the reasons for the absence?
4. Also if Question 2 is answered in the affirmative and Article 16(4) of the directive applies mutatis mutandis: is an enforced return to the host Member State in the context of criminal proceedings before expiry of the two-year period capable of maintaining the right to enhanced protection against expulsion, even where following that return the fundamental freedoms cannot be exercised for a considerable time?’
Consideration of the questions referred
Questions 2 to 4
22 By Questions 2 to 4, which should be considered first, the referring court asks essentially to what extent absences from the host Member State during the period referred to in Article 28(3)(a) of Directive 2004/38, that is, during the 10 years preceding the decision to expel the person concerned, prevent that person from enjoying the enhanced protection laid down in that provision.
23 According to the Court’s case-law, Directive 2004/38 aims to facilitate the exercise of the primary and individual right to move and reside freely within the territory of the Member States that is conferred directly on Union citizens by the Treaty, and it aims in particular to strengthen that right, so that Union citizens cannot derive less rights from that directive than from the instruments of secondary legislation which it amends or repeals (see Case C’127/08 Metock and Others [2008] ECR I-6241, paragraphs 59 and 82, and Case C-162/09 Lassal [2010] ECR I-0000, paragraph 30).
24 According to recital 23 in the preamble to Directive 2004/38, the expulsion of Union citizens and their family members on grounds of public policy or public security can seriously harm persons who, having availed themselves of the rights and freedoms conferred on them by the Treaty, have become genuinely integrated into the host Member State.
25 That is why Directive 2004/38, as follows from recital 24 in the preamble, establishes a system of protection against expulsion measures which is based on the degree of integration of those persons in the host Member State, so that the greater the degree of integration of Union citizens and their family members in the host Member State, the greater the degree of protection against expulsion should be.
26 In this context, Article 28(1) of that directive provides generally that, before taking an expulsion decision on grounds of public policy or public security, the host Member State must take account in particular of considerations such as how long the individual concerned has resided on its territory, his or her age, state of health, family and economic situation, social and cultural integration into the host Member State and the extent of his or her links with the country of origin.
27 Under Article 28(2), Union citizens or their family members, irrespective of nationality, who have the right of permanent residence in the territory of the host Member State pursuant to Article 16 of the directive cannot be the subject of an expulsion decision ‘except on serious grounds of public policy or public security’.
28 In the case of Union citizens who have resided in the host Member State for the previous 10 years, Article 28(3) of Directive 2004/38 considerably strengthens their protection against expulsion by providing that such a measure may not be taken except where the decision is based on ‘imperative grounds of public security, as defined by Member States’.
29 Article 28(3)(a) of Directive 2004/38, while making the enjoyment of enhanced protection subject to the person’s presence in the Member State concerned for 10 years preceding the expulsion measure, is silent as to the circumstances which are capable of interrupting the period of 10 years’ residence for the purposes of the acquisition of the right to enhanced protection against expulsion laid down in that provision.
30 Starting from the premiss that, like the right of permanent residence, enhanced protection is acquired after a certain length of residence in the host Member State and can subsequently be lost, the referring court considers that it may be possible to apply by analogy the criteria in Article 16(4) of Directive 2004/38.
31 While recitals 23 and 24 in the preamble to Directive 2004/38 certainly refer to special protection for persons who are genuinely integrated into the host Member State, in particular when they were born there and have spent all their life there, the fact remains that, in view of the wording of Article 28(3) of that directive, the decisive criterion is whether the Union citizen has lived in that Member State for the 10 years preceding the expulsion decision.
32 As to the question of the extent to which absences from the host Member State during the period referred to in Article 28(3)(a) of Directive 2004/38, namely the 10 years preceding the decision to expel the person concerned, prevent him from enjoying enhanced protection, an overall assessment must be made of the person’s situation on each occasion at the precise time when the question of expulsion arises.
33 The national authorities responsible for applying Article 28(3) of Directive 2004/38 are required to take all the relevant factors into consideration in each individual case, in particular the duration of each period of absence from the host Member State, the cumulative duration and the frequency of those absences, and the reasons why the person concerned left the host Member State. It must be ascertained whether those absences involve the transfer to another State of the centre of the personal, family or occupational interests of the person concerned.
34 The fact that the person in question has been the subject of a forced return to the host Member State in order to serve a term of imprisonment there and the time spent in prison may, together with the factors listed in the preceding paragraph, be taken into account as part of the overall assessment required for determining whether the integrating links previously forged with the host Member State have been broken.
35 It is for the national court to assess whether that is the case in the main proceedings. If that court were to reach the conclusion that Mr Tsakouridis’s absences from the host Member State are not such as to prevent him from enjoying enhanced protection, it would then have to examine whether the expulsion decision was based on imperative grounds of public security within the meaning of Article 28(3) of Directive 2004/38.
36 It should be recalled that, in order to provide the national court with an answer which will be of use to it and enable it to determine the case before it, the Court may find it necessary to consider provisions of European Union law which the national court has not referred to in its questions (see, to that effect, Case C-374/05 Gintec [2007] ECR I-9517, paragraph 48).
37 If it were concluded that a person in Mr Tsakouridis’s situation who has acquired a right of permanent residence in the host Member State does not satisfy the residence condition laid down in Article 28(3) of Directive 2004/38, an expulsion measure could in an appropriate case be justified on ‘serious grounds of public policy or public security’ as laid down in Article 28(2) of Directive 2004/38.
38 In the light of the foregoing, the answer to Questions 2 to 4 is that Article 28(3)(a) of Directive 2004/38 must be interpreted as meaning that, in order to determine whether a Union citizen has resided in the host Member State for the 10 years preceding the expulsion decision, which is the decisive criterion for granting enhanced protection under that provision, all the relevant factors must be taken into account in each individual case, in particular the duration of each period of absence from the host Member State, the cumulative duration and the frequency of those absences, and the reasons why the person concerned left the host Member State, reasons which may establish whether those absences involve the transfer to another State of the centre of the personal, family or occupational interests of the person concerned.
Question 1
39 In view of the answer which has been given to Questions 2 to 4, Question 1 must be understood to the effect that the referring court seeks essentially to know whether and to what extent criminal offences in connection with dealing in narcotics as part of an organised group can be covered by the concept of ‘imperative grounds of public security’, should that court conclude that the Union citizen concerned enjoys the protection of Article 28(3) of Directive 2004/38, or the concept of ‘serious grounds of public policy or public security’, should it conclude that that citizen enjoys the protection of Article 28(2) of that directive.
40 It follows from the wording and scheme of Article 28 of Directive 2004/38, as explained in paragraphs 24 to 28 above, that by subjecting all expulsion measures in the cases referred to in Article 28(3) of that directive to the existence of ‘imperative grounds’ of public security, a concept which is considerably stricter than that of ‘serious grounds’ within the meaning of Article 28(2), the European Union legislature clearly intended to limit measures based on Article 28(3) to ‘exceptional circumstances’, as set out in recital 24 in the preamble to that directive.
41 The concept of ‘imperative grounds of public security’ presupposes not only the existence of a threat to public security, but also that such a threat is of a particularly high degree of seriousness, as is reflected by the use of the words ‘imperative reasons’.
42 It is in this context that the concept of ‘public security’ in Article 28(3) of Directive 2004/38 should also be interpreted.
43 As regards public security, the Court has held that this covers both a Member State’s internal and its external security (see, inter alia, Case C-273/97 Sirdar [1999] ECR I-7403, paragraph 17; Case C-285/98 Kreil [2000] ECR I-69, paragraph 17; Case C-423/98 Albore [2000] ECR I-5965, paragraph 18; and Case C-186/01 Dory [2003] ECR I-2479, paragraph 32).
44 The Court has also held that a threat to the functioning of the institutions and essential public services and the survival of the population, as well as the risk of a serious disturbance to foreign relations or to peaceful coexistence of nations, or a risk to military interests, may affect public security (see, inter alia, Case 72/83 Campus Oil and Others [1984] ECR 2727, paragraphs 34 and 35; Case C-70/94 Werner [1995] ECR I-3189, paragraph 27; Albore, paragraph 22; and Case C-398/98 Commission v Greece [2001] ECR I-7915, paragraph 29).
45 It does not follow that objectives such as the fight against crime in connection with dealing in narcotics as part of an organised group are necessarily excluded from that concept.
46 Dealing in narcotics as part of an organised group is a diffuse form of crime with impressive economic and operational resources and frequently with transnational connections. In view of the devastating effects of crimes linked to drug trafficking, Council Framework Decision 2004/757/JHA of 25 October 2004 laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking (OJ 2004 L 335, p. 8) states in recital 1 that illicit drug trafficking poses a threat to health, safety and the quality of life of citizens of the Union, and to the legal economy, stability and security of the Member States.
47 Since drug addiction represents a serious evil for the individual and is fraught with social and economic danger to mankind (see, to that effect, inter alia, Case 221/81 Wolf [1982] ECR 3681, paragraph 9, and Eur. Court H.R., Aoulmi v. France, no. 50278/99, § 86, ECHR 2006’I), trafficking in narcotics as part of an organised group could reach a level of intensity that might directly threaten the calm and physical security of the population as a whole or a large part of it.
48 It should be added that Article 27(2) of Directive 2004/38 emphasises that the conduct of the person concerned must represent a genuine and present threat to a fundamental interest of society or of the Member State concerned, that previous criminal convictions cannot in themselves constitute grounds for taking public policy or public security measures, and that justifications that are isolated from the particulars of the case or that rely on considerations of general prevention cannot be accepted.
49 Consequently, an expulsion measure must be based on an individual examination of the specific case (see, inter alia, Metock and Others, paragraph 74), and can be justified on imperative grounds of public security within the meaning of Article 28(3) of Directive 2004/38 only if, having regard to the exceptional seriousness of the threat, such a measure is necessary for the protection of the interests it aims to secure, provided that that objective cannot be attained by less strict means, having regard to the length of residence of the Union citizen in the host Member State and in particular to the serious negative consequences such a measure may have for Union citizens who have become genuinely integrated into the host Member State.
50 In the application of Directive 2004/38, a balance must be struck more particularly between the exceptional nature of the threat to public security as a result of the personal conduct of the person concerned, assessed if necessary at the time when the expulsion decision is to be made (see, inter alia, Joined Cases C-482/01 and C-493/01 Orfanopoulos and Oliveri [2004] ECR I-5257, paragraphs 77 to 79), by reference in particular to the possible penalties and the sentences imposed, the degree of involvement in the criminal activity, and, if appropriate, the risk of reoffending (see, to that effect, inter alia, Case 30/77 Bouchereau [1977] ECR 1999, paragraph 29), on the one hand, and, on the other hand, the risk of compromising the social rehabilitation of the Union citizen in the State in which he has become genuinely integrated, which, as the Advocate General observes in point 95 of his Opinion, is not only in his interest but also in that of the European Union in general.
51 The sentence passed must be taken into account as one element in that complex of factors. A sentence of five years’ imprisonment cannot lead to an expulsion decision, as provided for in national law, without the factors described in the preceding paragraph being taken into account, which is for the national court to verify.
52 In that assessment, account must be taken of the fundamental rights whose observance the Court ensures, in so far as reasons of public interest may be relied on to justify a national measure which is liable to obstruct the exercise of freedom of movement for persons only if the measure in question takes account of such rights (see, inter alia, Orfanopoulos and Oliveri, paragraphs 97 to 99), in particular the right to respect for private and family life as set forth in Article 7 of the Charter of Fundamental Rights of the European Union and Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (see, inter alia, Case C-400/10 PPU McB [2010] ECR I-0000, paragraph 53, and Eur. Court H.R., Maslov v. Austria [GC], no. 1638/03, § 61 et seq., 23 June 2008).
53 To assess whether the interference contemplated is proportionate to the legitimate aim pursued, in this case the protection of public security, account must be taken in particular of the nature and seriousness of the offence committed, the duration of residence of the person concerned in the host Member State, the period which has passed since the offence was committed and the conduct of the person concerned during that period, and the solidity of the social, cultural and family ties with the host Member State. In the case of a Union citizen who has lawfully spent most or even all of his childhood and youth in the host Member State, very good reasons would have to be put forward to justify the expulsion measure (see, to that effect, in particular, Maslov v. Austria, §§ 71 to 75).
54 In any event, since the Court has held that a Member State may, in the interests of public policy, consider that the use of drugs constitutes a danger for society such as to justify special measures against foreign nationals who contravene its laws on drugs (see Case C-348/96 Calfa [1999] ECR I-11, paragraph 22, and Orfanopoulos and Oliveri, paragraph 67), it must follow that dealing in narcotics as part of an organised group is a fortiori covered by the concept of ‘public policy’ for the purposes of Article 28(2) of Directive 2004/38.
55 It is for the referring court to ascertain, taking into consideration all the factors mentioned above, whether Mr Tsakouridis’s conduct is covered by ‘serious grounds of public policy or public security’ within the meaning of Article 28(2) of Directive 2004/38 or ‘imperative grounds of public security’ within the meaning of Article 28(3) of that directive, and whether the proposed expulsion measure satisfies the conditions referred to above.
56 In the light of the foregoing, the answer to Question 1 is that, should the referring court conclude that the Union citizen concerned enjoys the protection of Article 28(3) of Directive 2004/38, that provision must be interpreted as meaning that the fight against crime in connection with dealing in narcotics as part of an organised group is capable of being covered by the concept of ‘imperative grounds of public security’ which may justify a measure expelling a Union citizen who has resided in the host Member State for the preceding 10 years. Should the referring court conclude that the Union citizen concerned enjoys the protection of Article 28(2) of Directive 2004/38, that provision must be interpreted as meaning that the fight against crime in connection with dealing in narcotics as part of an organised group is covered by the concept of ‘serious grounds of public policy or public security’.
Costs
57 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Grand Chamber) hereby rules:
1. Article 28(3)(a) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC must be interpreted as meaning that, in order to determine whether a Union citizen has resided in the host Member State for the 10 years preceding the expulsion decision, which is the decisive criterion for granting enhanced protection under that provision, all the relevant factors must be taken into account in each individual case, in particular the duration of each period of absence from the host Member State, the cumulative duration and the frequency of those absences, and the reasons why the person concerned left the host Member State, reasons which may establish whether those absences involve the transfer to another State of the centre of the personal, family or occupational interests of the person concerned.
2. Should the referring court conclude that the Union citizen concerned enjoys the protection of Article 28(3) of Directive 2004/38, that provision must be interpreted as meaning that the fight against crime in connection with dealing in narcotics as part of an organised group is capable of being covered by the concept of ‘imperative grounds of public security’ which may justify a measure expelling a Union citizen who has resided in the host Member State for the preceding 10 years. Should the referring court conclude that the Union citizen concerned enjoys the protection of Article 28(2) of Directive 2004/38, that provision must be interpreted as meaning that the fight against crime in connection with dealing in narcotics as part of an organised group is covered by the concept of ‘serious grounds of public policy or public security’.
[Signatures]