CJEC, July 7, 1976, No 118-75

THE COURT

1 By order of 18 november 1975 received at the court registry on 1 december 1975 the pretura, milan, referred to the court under article 177 of the eec treaty a series of questions dealing in particular with the interpretation of articles 7 and 48 to 66 of that treaty.

2 These questions have been raised within the context of criminal proceedings against, on the one hand, a british national who spent several months in italy and, on the other, an italian national who gave her accommodation.

3 The said british national is alleged to have failed to discharge the obligation to report, within three days of her entry into the territory of the italian republic, to the police authorities of the place where she was staying ' in order to notify (her) presence and to make a declaration of residence '. This obligation is imposed by italian legislation on all foreign nationals, with the exception of certain categories of employed workers from other member states, and the penalties provided for in the event of a failure to discharge it are a maximum fine of lit. 80 000 or a maximum of three months ' detention and, in addition, possible deportation from the national territory, entailing a prohibition on re-entry without the permission of the minister for the interior.

4 The italian national is charged with having failed to inform the said authorities within twenty-four hours of the identity of the british national in question. This obligation is imposed by italian legislation on ' any person who provides board and lodging, on whatever basis, to a foreign national or a stateless person,... Or for any reason whatever takes such person into his employment ', and failure to discharge it renders the person concerned liable to a maximum fine of lit. 240 000 or a maximum of six months ' detention.

5 The questions referred to the court ask essentially whether such rules are contrary to the provisions of articles 7 and 48 to 66 of the treaty, on the ground that they constitute discrimination based on nationality and a restriction on freedom of movement for persons within the community.

6 They also ask whether the above mentioned community rules constitute fundamental principles which create individual rights and take precedence over national rules to the contrary.

7 1. It is appropriate to deal with these questions as a whole.

8 Without giving the reason for the temporary residence in italy of the defendant in the main action or defining her position in relation to the provisions of community law which might be applicable to her the national court referred to the first three chapters of title iii of part two of the treaty, which concern workers, the right of establishment and services, without making any distinction between those chapters.

9 Nevertheless comparison of these different provisions shows that, to the extent to which they may be applied in cases such as the present, they are based on the same principles both in so far as they concern the entry into and residence in the territory of member states of persons covered by community law and the prohibition of all discrimination between them on grounds of nationality.

10 It is for the national court to consider whether, and if so in what capacity, the defendant in the main action is covered by the provisions of one or other of the abovementioned chapters.

11 2. Article 48 provides that freedom of movement for workers shall be secured within the community.

Paragraph (3) of that article provides that it shall entail the right to enter the territory of member states, to move freely there, to stay there for the purpose of employment and to remain there after the end of this employment.

Articles 52 and 59 provide that restrictions on the freedom of establishment and the freedom to provide services within the community shall be abolished by progressive stages which shall be completed by the end of the transitional period.

12 These provisions, which may be construed as prohibiting member states from setting up restrictions or obstacles to the entry into their territory of nationals of other member states, have the effect of conferring rights directly on all persons falling within the ambit of the abovementioned articles, as later given closer articulation by certain provisions adopted by the council in implementation of the treaty.

13 Thus, article 1 of regulation n°1612-68 of 15 october 1968 on freedom of movement for workers within the community (oj, english special edition, 1968 (ii), p. 475) provides that any national of a member state shall, irrespective of his place of residence, have ' the right to take up an activity as an employed person, and to pursue such activity, within the territory of another member state '.

14 Article 4 of directive n°68-360 of 15 october 1968 on the abolition of restrictions on movement and residence within the community for workers of member states and their families (loc. Cit. P. 485) provides that member states shall grant ' the right of residence in their territory ' to the persons referred to and further states that as ' proof ' of this right an individual residence permit shall be issued.

15 Further, the preamble to directive n°73-148 of 21 may 1973 on the abolition of restrictions on movement and residence within the community for nationals of member states with regard to establishment and the provision of services (oj, l 172, p. 14) states that freedom of establishment can be fully attained only ' if a right of permanent residence is granted to the persons who are to enjoy freedom of establishment ' and that freedom to provide services entails that persons providing and receiving services have ' the right of residence for the time during which the services are being provided '.

16 The provisions of the treaty and of secondary community law to which reference has just been made implement a fundamental principle contained in article 3 (c) of the treaty, which states that, for the purposes set out in article 2, the activities of the community shall include the abolition, as between member states, of obstacles to freedom of movement for persons, services and capital.

These provisions take precedence over any national rule which might conflict with them.

17 By creating the principle of freedom of movement for persons and by conferring on any person falling within its ambit the right of access to the territory of the member states, for the purposes intended by the treaty, community law has not excluded the power of member states to adopt measures enabling the national authorities to have an exact knowledge of population movements affecting their territory.

18 Under the terms of article 8 (2) of directive n°68-360 and article 4 (2) of directive n°73-148, the competent authorities in the member states may require nationals of the other member states to report their presence to the authorities of the state concerned.

Such an obligation could not in itself be regarded as an infringement of the rules concerning freedom of movement for persons.

However, such an infringement might result from the legal formalities in question if the control procedures to which they refer were such as to restrict the freedom of movement required by the treaty or to limit the right conferred by the treaty on nationals of the member states to enter and reside in the territory of any other member state for the purposes intended by community law.

19 In particular as regards the period within which the arrival of foreign nationals must be reported, the provisions of the treaty are only infringed if the period fixed is unreasonable.

20 Among the penalties attaching to a failure to comply with the prescribed declaration and registration formalities, deportation, in relation to persons protected by community law, is certainly incompatible with the provisions of the treaty since, as the court has already confirmed in other cases, such a measure negates the very right conferred and guaranteed by the treaty.

21 As regards other penalties, such as fines and detention, whilst the national authorities are entitled to impose penalties in respect of a failure to comply with the terms of provisions requiring foreign nationals to notify their presence which are comparable to those attaching to infringements of provisions of equal importance by nationals, they are not justified in imposing a penalty so disproportionate to the gravity of the infringement that it becomes an obstacle to the free movement of persons.

22 In so far as national rules concerning the control of foreign nationals do not involve restrictions on freedom of movement for persons and on the right, conferred by the treaty on persons protected by community law, to enter and reside in the territory of the member states, the application of such legislation, where it is based upon objective factors, cannot constitute ' discrimination on grounds of nationality ', prohibited under article 7 of the treaty.

23 Provisions which require residents of the host state to inform the public authorities of the identity of foreign nationals for whom they provide accommodation, and which are for the most part connected with the internal order of the state, can only be called into question from the point of view of community law if they place an indirect restriction on freedom of movement for persons.

The foregoing observations concerning the obligations imposed on nationals of other member states are therefore equally valid as regards the above mentioned requirement.

Costs

24 The costs incurred by the british and italian governments 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, in the nature of a step in the action pending before the national court, the decision as to costs is a matter for that court.

On those grounds,

The court

In answer to the questions referred to it by the pretura, milan, hereby rules:

1. Articles 48 to 66 of the treaty and the measures adopted by the community in application thereof implement a fundamental principle of the treaty, confer on persons whom they concern individual rights which the national courts must protect and take precedence over any national rule which might conflict with them.

2. National regulations which

- require nationals of other member states who benefit from the provisions of articles 48 to 66 of the eec treaty to report to the authorities of that state,

And

- prescribe that residents who provide accommodation for such foreign nationals must inform the said authorities of the identity of such foreign nationals

Are in principle compatible with the provisions in question provided, first, that the period fixed for the discharge of the said obligations is reasonable and, secondly, that the penalties attaching to a failure to discharge them are not disproportionate to the gravity of the offence and do not include deportation.

3. In so far as such rules do not entail restrictions on freedom of movement for persons, they do not constitute discrimination prohibited under article 7 of the treaty.